Fish and Fish Product Import Provisions of the Marine Mammal Protection Act List of Foreign Fisheries, 11703-11727 [2018-05348]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 83, Number 52 (Friday, March 16, 2018)]
[Notices]
[Pages 11703-11727]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-05348]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XF538
[[Docket No. 170706630-8209-02]


Fish and Fish Product Import Provisions of the Marine Mammal 
Protection Act List of Foreign Fisheries

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Notice of availability.

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SUMMARY: NMFS is publishing its final 2017 List of Foreign Fisheries 
(LOFF), as required by the regulations implementing the Fish and Fish 
Product Import Provisions of the Marine Mammal Protection Act (MMPA). 
The final LOFF reflects new information received during the comment 
period on interactions between commercial fisheries exporting fish and 
fish products to the United States and marine mammals, and updates and 
revisions to the draft LOFF. NMFS has classified each commercial 
fishery on the final LOFF into one of two categories, either ``export'' 
or ``exempt'', based upon frequency and likelihood of

[[Page 11704]]

incidental mortality and serious injury of marine mammals likely to 
occur incidental to each fishery. The classification of a fishery on 
the final LOFF determines which regulatory requirements will be 
applicable to that fishery for it to receive a comparability finding 
necessary to export fish and fish products to the United States from 
that fishery. The final LOFF can be found at: https://www.fisheries.noaa.gov/foreign/international-affairs/list-foreign-fisheries

FOR FURTHER INFORMATION CONTACT: Nina Young, NMFS F/IASI at 
[email protected], [email protected], or 301-427-8383.

SUPPLEMENTARY INFORMATION: In August 2016, NMFS published a final rule 
(81 FR 54390; August 15, 2016) implementing the fish and fish product 
import provisions (section 101(a)(2)) of the MMPA. This rule 
established conditions for evaluating a harvesting nation's regulatory 
programs to address incidental and intentional mortality and serious 
injury of marine mammals in its fisheries producing fish and fish 
products exported to the United States.
    Under this rule, fish or fish products cannot be imported into the 
United States from commercial fishing operations that result in the 
incidental mortality or serious injury of marine mammals in excess of 
United States standards. Fish and fish products from export and exempt 
fisheries identified by the Assistant Administrator for Fisheries in 
the LOFF can only be imported into the United States if the harvesting 
nation has applied for and received a comparability finding from NMFS. 
The rule established procedures that a harvesting nation must follow 
and conditions it must meet to receive a comparability finding for a 
fishery. The rule also established provisions for intermediary nations 
to ensure that such nations do not import and re-export to the United 
States fish or fish products that are subject to an import prohibition.

What is the List of Foreign Fisheries?

    Based on information provided by nations, industry, the public, and 
other readily available sources, NMFS identified nations with 
commercial fishing operations that export fish and fish products to the 
United States and classified each of those fisheries based on their 
frequency of marine mammal interactions as either ``exempt'' or 
``export'' fisheries (see definitions below). The entire list of these 
export and exempt fisheries, organized by nation (or economy), 
constitutes the LOFF.

Why is the LOFF important?

    Under the MMPA, the United States prohibits imports of commercial 
fish or fish products caught in commercial fishing operations resulting 
in the incidental killing or serious injury (bycatch) of marine mammals 
in excess of United States standards (16 U.S.C. 1371(a)(2)). NMFS 
published regulations implementing these MMPA import provisions in 
August 2016 (81 FR 54390; August 15, 2016). The regulations apply to 
any foreign nation with fisheries exporting fish and fish products to 
the United States, either directly or through an intermediary nation. 
\1\
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    \1\ With respect to all references to ``nation'' or ``nations'' 
in the rule, it should be noted that the Taiwan Relations Act of 
1979, Pub. L. 96-8, Section 4(b)(1), provides that [w]henever the 
laws of the United States refer or relate to foreign countries, 
nations, states, governments, or similar entities, such terms shall 
include and such laws shall apply with respect to Taiwan. 22 U.S.C. 
3303(b)(1). This is consistent with the United States' one-China 
policy, under which the United States has maintained unofficial 
relations with Taiwan since 1979.
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    The LOFF is integral to the implementation of the MMPA import 
provisions. As described below, the LOFF lists foreign commercial 
fisheries that export fish and fish products to the United States and 
that have been classified as either ``export'' or ``exempt'' based on 
the frequency and likelihood of interactions or incidental mortality 
and serious injury of a marine mammal. A harvesting nation must apply 
for and receive a comparability finding for each of its export and 
exempt fisheries to continue to export fish and fish products from 
those fisheries to the United States. For all fisheries, to receive a 
comparability finding under this program, the harvesting nation must 
prohibit intentional killing of marine mammals in the course of 
commercial fishing operations in the fishery or demonstrate that it has 
procedures to reliably certify that exports of fish and fish products 
to the United States were not harvested in association with the 
intentional killing or serious injury of marine mammals.

What do the classifications of ``exempt fishery'' and ``export 
fishery'' mean?

    The classifications of ``exempt fishery'' or ``export fishery'' 
determine the criteria that a nation's fishery must meet to receive a 
comparability finding for that fishery. A comparability finding is 
required for both exempt and export fisheries, but the criteria for 
exempt and export fisheries differ.
    For an exempt fishery, the criteria to receive a comparability 
finding are limited only to conditions related to the prohibition of 
intentional killing or injury of marine mammals (see 50 CFR 
216.24(h)(6)(iii)(A)). For an export fishery, the criteria to receive a 
comparability finding include the conditions related to the prohibition 
of intentional killing or injury of marine mammals (see 50 CFR 
216.24(h)(6)(iii)(A)) and the requirement to develop and maintain 
regulatory programs comparable in effectiveness to the U.S. regulatory 
program for reducing incidental marine mammal bycatch (see 50 CFR 
216.24(h)(6)). The definitions of ``exempt'' and ``export'' fishery are 
below.

What is the five-year exemption period?

    NMFS included a five-year exemption period (which began 1 January 
2017) in this process to allow foreign harvesting nations time to 
develop, as appropriate, regulatory programs comparable in 
effectiveness to U.S. programs at reducing marine mammal bycatch. 
During this exemption period, NMFS, based on the final LOFF, and in 
consultation with the Secretary of State, will consult with harvesting 
nations with commercial fishing operations identified as export or 
exempt fisheries for purposes of notifying the harvesting nation of the 
requirements of the MMPA. NMFS will continue to urge harvesting nations 
to gather information about marine mammal bycatch in their commercial 
fisheries to inform the next draft and final LOFF (slated for 2020). 
NMFS will re-evaluate foreign commercial fishing operations and publish 
a notice of availability of the draft for public comment, and a notice 
of availability of the final revised LOFF in the Federal Register the 
year prior to the expiration of the exemption period (2020).
    Based on the information in this final LOFF, in 2019, nations must 
provide a progress report to NMFS on their efforts to develop 
monitoring and regulatory programs comparable to the U.S. regulatory 
program.
    If, during the five-year exemption period, the United States 
determines that a marine mammal stock is immediately and significantly 
adversely affected by an export fishery, NMFS may use its emergency 
rulemaking authority to institute an import ban on products from that 
fishery.

How did NMFS classify a fishery if a harvesting nation did not provide 
information?

    Information on the frequency or likelihood of interactions or 
bycatch in most foreign fisheries was lacking or incomplete. Absent 
such information, NMFS used readily available

[[Page 11705]]

information, noted below, to classify fisheries, which included drawing 
analogies to similar U.S. fisheries and gear types interacting with 
similar marine mammal stocks. Where no analogous fishery or fishery 
information exists, NMFS classified the commercial fishing operation as 
an export fishery until information becomes available to properly 
classify the fishery. While preparing a revised LOFF, NMFS may 
reclassify a fishery if a harvesting nation provides, during the 
comment period, reliable information to reclassify the fishery or such 
information is readily available to NMFS.

Definitions

What is a ``comparability finding?''

    A comparability finding is a finding by NMFS that the harvesting 
nation for an export or exempt fishery has met the applicable 
conditions specified in the regulations (see 50 CFR 216.24(h)) subject 
to the additional considerations for comparability findings set out in 
the regulations. A comparability finding is required for a nation to 
export fish and fish products to the United States. To receive a 
comparability finding for an export fishery, the harvesting nation must 
maintain a regulatory program with respect to that fishery that is 
comparable in effectiveness to the U.S. regulatory program for reducing 
incidental marine mammal bycatch. This requirement may be met by 
developing, implementing and maintaining a regulatory program that 
includes measures that are comparable, or that effectively achieve 
comparable results, to the regulatory program under which the analogous 
U.S. fishery operates.

What is the definition of an ``export fishery?''

    The definition of export fishery can be found in the implementing 
regulations for section 101(a)(2) of the MMPA (see 50 CFR 216.3). NMFS 
considers ``export'' fisheries to be functionally equivalent to 
Category I and II fisheries under the U.S. regulatory program (see 
definitions at 50 CFR 229.2). The definition of an export fishery is 
summarized below.
    NMFS defines ``export fishery'' as a foreign commercial fishing 
operation determined by the Assistant Administrator to be the source of 
exports of commercial fish and fish products to the United States that 
have more than a remote likelihood of incidental mortality and serious 
injury of marine mammals in the course of its commercial fishing 
operations.
    Where reliable information on the frequency of incidental mortality 
and serious injury of marine mammals caused by the commercial fishing 
operation is not provided by the harvesting nation, the Assistant 
Administrator may determine the likelihood of incidental mortality and 
serious injury as more than remote by evaluating information concerning 
factors such as fishing techniques, gear used, methods used to deter 
marine mammals, target fish species, seasons and areas fished, 
qualitative data from logbooks or fisher reports, stranding data, the 
species and distribution of marine mammals in the area, or other 
factors.
    Commercial fishing operations not specifically identified in the 
current LOFF as either exempt or export fisheries are deemed to be 
export fisheries until a revised LOFF is posted, unless the harvesting 
nation provides the Assistant Administrator with information to 
properly classify a foreign commercial fishing operation not on the 
LOFF. The Assistant Administrator may also request additional 
information from the harvesting nation, as well as consider other 
relevant information about such commercial fishing operations and the 
frequency of incidental mortality and serious injury of marine mammals, 
to properly classify the foreign commercial fishing operation.

What is the definition of an ``exempt fishery?''

    The definition of exempt fishery can be found in the implementing 
regulations for section 101(a)(2) of the MMPA (see 50 CFR 216.3). NMFS 
considers ``exempt'' fisheries to be functionally equivalent to 
Category III fisheries under the U.S. regulatory program (see 
definitions at 50 CFR 229.2).
    NMFS defines an exempt fishery as a foreign commercial fishing 
operation determined by the Assistant Administrator to be the source of 
exports of commercial fish and fish products to the United States that 
have a remote likelihood of, or no known, incidental mortality and 
serious injury of marine mammals in the course of commercial fishing 
operations. A commercial fishing operation that has a remote likelihood 
of causing incidental mortality and serious injury of marine mammals is 
one that, collectively with other foreign fisheries exporting fish and 
fish products to the United States, causes the annual removal of:
    (1) Ten percent or less of any marine mammal stock's bycatch limit, 
or
    (2) More than ten percent of any marine mammal stock's bycatch 
limit, yet that fishery by itself removes one percent or less of that 
stock's bycatch limit annually, or
    (3) Where reliable information has not been provided by the 
harvesting nation on the frequency of incidental mortality and serious 
injury of marine mammals caused by the commercial fishing operation, 
the Assistant Administrator may determine whether the likelihood of 
incidental mortality and serious injury is ``remote'' by evaluating 
information such as fishing techniques, gear used, methods to deter 
marine mammals, target fish species, seasons and areas fished, 
qualitative data from logbooks or fisher reports, stranding data, the 
species and distribution of marine mammals in the area, or other 
factors at the discretion of the Assistant Administrator.
    A foreign fishery will not be classified as an exempt fishery 
unless the Assistant Administrator has reliable information from the 
harvesting nation, or other information, to support such a finding.

Developing the 2017 List of Foreign Fisheries

How is the List of Foreign Fisheries organized?

    NMFS organized the LOFF by harvesting nation (or economy). Each 
harvesting nation's LOFF may include ``exempt fisheries,'' ``export 
fisheries,'' and ``export fisheries with no information''. The 
fisheries listing includes defining factors including geographic 
location of harvest, gear-type, target species, or a combination 
thereof. Where known, the LOFF also includes a list of the marine 
mammals that interact with each commercial fishing operation, and, when 
available, indicates the level of incidental mortality and serious 
injury of marine mammals in each commercial fishing operation.

What sources of information did NMFS use to classify the commercial 
fisheries included in the LOFF?

    NMFS reviewed and considered documentation provided by nations; the 
public; and other sources of information, where available, including 
fishing vessel records; reports of on-board fishery observers; 
information from off-loading facilities, port-side government 
officials, enforcement entities and documents, transshipment vessel 
workers and fish importers; government vessel registries; regional 
fisheries management organization (RFMO) or intergovernmental agreement

[[Page 11706]]

documents, reports, national reports, and statistical document 
programs; appropriate catch certification programs; Food and 
Agricultural Organization (FAO) documents and profiles; and published 
literature and reports on commercial fishing operations with 
intentional or incidental mortality and serious injury of marine 
mammals. NMFS has used these sources of information and any other 
readily available information to classify the fisheries as ``export'' 
or ``exempt'' fisheries to develop the LOFF.

How did NMFS obtain the information used to classify fisheries in the 
LOFF?

    First, NMFS identified imports of fish and fish products by nation 
using the U.S. foreign trade database for commercial fisheries imports 
found at: https://www.st.nmfs.noaa.gov/commercial-fisheries/foreign-trade/. Second, in December 2016, NMFS notified in writing each nation 
with commercial fishing or processing operations that export fish or 
fish products to the United States to request that within 90 days of 
notification, by April 1, 2017, the nation submit information about 
commercial fishing or processing operations. NMFS included in that 
notification a list of fish and fish products imported into the United 
States from that nation during the past several years.
    For commercial fishing operations, NMFS requested information on 
the number of participants, number of vessels, gear type, target 
species, area of operation, fishing season, and any information 
regarding the frequency of marine mammal incidental mortality and 
serious injury, including programs to assess marine mammal populations 
or bycatch. NMFS also requested that nations submit copies of any laws, 
decrees, regulations, or measures to reduce incidental mortality and 
serious injury of marine mammals in their commercial fishing operations 
or prohibit the intentional killing or injury of marine mammals.
    NMFS also evaluated information submitted by the nations and the 
public in response to the Federal Register Notice (82 FR 2961; January 
10, 2017) seeking information on foreign commercial fishing operations 
that export fish and fish products to the United States and the 
frequency of incidental and intentional mortality and serious injury of 
marine mammals in those fisheries.
    Based on these information sources, NMFS developed and published a 
draft LOFF in the Federal Register for public comment (82 FR 39762; 
August 22, 2017). NMFS revised the draft LOFF based on public comments 
and information nations submitted during the comment period.

How did NMFS determine which species or stocks are included as 
incidentally or intentionally killed or seriously injured in a fishery?

    The LOFF includes a list of marine mammal species and/or stocks 
incidentally or intentionally killed or injured in a commercial fishing 
operation. The list of species and/or stocks incidentally or 
intentionally killed or injured includes ``serious'' and ``non-
serious'' documented injuries and interactions with fishing gear, 
including interactions such as depredation.
    NMFS reviewed information submitted by nations and readily 
available scientific information including co-occurrence models 
demonstrating distributional overlap of commercial fishing operations 
and marine mammals to determine which species or stocks to include as 
incidentally or intentionally killed or injured in or interacting with 
a fishery. NMFS also reviewed, when available, injury determination 
reports, bycatch estimation reports, observer data, logbook data, 
disentanglement network data, fisher self-reports, and the information 
referenced in the definition of exempt and export fishery (see above or 
50 CFR 216.3).

How often will NMFS revise the List of Foreign Fisheries?

    NMFS will re-evaluate foreign commercial fishing operations and 
publish in the Federal Register the year prior to the expiration of the 
exemption period (2020), a notice of availability of the draft for 
public comment and a notice of availability of the final revised LOFF. 
NMFS will revise the final LOFF, as appropriate, and publish a notice 
of availability in the Federal Register every four years thereafter. In 
revising the list, NMFS may reclassify a fishery if new, substantive 
information indicates the need to re-examine and possibly reclassify a 
fishery. After publication of the LOFF, if a nation wishes to commence 
exporting fish and fish products to the United States from a fishery 
not currently included in the LOFF, that fishery will be classified as 
an export fishery until the next LOFF is published and will be provided 
a provisional comparability finding for a period not to exceed twelve 
months. If a harvesting nation can provide the reliable information 
necessary to classify the commercial fishing operation at the time of 
the request for a provisional comparability finding or prior to the 
expiration of the provisional comparability finding, NMFS will classify 
the fishery in accordance with the definitions. The provisions for new 
entrants are discussed in the regulations implementing section 
101(a)(2) of the MMPA (see 50 CFR 216.24(h)(8)(vi)).

How can a classification be changed?

    To change a fishery's classification, nations or other interested 
stakeholders must provide observer data, logbook summaries (preferably 
over a five-year period), or reports that specifically indicate the 
presence or absence of marine mammal interactions, quantify such 
interactions wherever possible, provide additional information on the 
location and operation of the fishery, details about the gear type and 
how it is used, maps showing the distribution of marine mammals and the 
operational area of the fishery; information regarding marine mammal 
populations and the biological impact of that fishery on those 
populations, and/or any other documentation that clearly demonstrates 
that a fishery is either an export or exempt fishery. Data from 
independent onboard observer programs documenting marine mammal 
interaction and bycatch is preferable. Such data can be summarized and 
averaged over at least a five-year period and include information on 
the observer program including the percent coverage, number of vessels 
and sets or hauls observed. Nations should also indicate whether 
bycatch estimates from observer data are observed minimum counts or 
extrapolated estimates for the entire fishery. Nations submitting 
logbook information should include details about the reporting system, 
including examples of forms and requirements for reporting.

The Intersection of the LOFF and Other Statutes Certifying Bycatch

What is the relationship between the MMPA import rule, the LOFF, and 
the affirmative finding process for yellowfin tuna purse seine 
fisheries in the eastern tropical Pacific Ocean?

    Dolphin (family Delphinidae) incidental mortality and serious 
injury in eastern tropical Pacific yellowfin tuna purse seine fisheries 
are covered by section 101(a)(2)(B) and Title III of the MMPA (16 
U.S.C. 1371(a)(2)(B) and 16 U.S.C. 1411-1417), implemented at 50 CFR 
216.24(a)-(g). Nations must still comply with those provisions and 
receive an affirmative finding in order to export tuna to the United 
States. Tuna purse seine fishing vessels fishing for tuna with a 
carrying capacity of 400 short tons or greater that are governed by the 
Agreement for the International

[[Page 11707]]

Dolphin Conservation Program (AIDCP) are not included in the LOFF, and 
are not required to apply for and receive a comparability finding. 
Purse seine vessels under 400 short tons and vessels using all other 
gear types operating in the eastern tropical Pacific must comply with 
the MMPA import rule. These fisheries are included in the LOFF and must 
apply for and receive a comparability finding.

What is the intersection of the U.S. shrimp certification program 
(Section 609 of Pub. L. 101-162) with the MMPA import rule?

    Section 609 of Public Law 101-162 (``Sec. 609'') prohibits imports 
of certain categories of shrimp unless the President certifies to the 
Congress by May 1, 1991, and annually thereafter, that either: (1) The 
harvesting nation has adopted a program governing the incidental taking 
of sea turtles in its commercial shrimp fishery comparable to the 
program in effect in the United States and has an incidental take rate 
comparable to that of the United States; or (2) the particular fishing 
environment of the harvesting nation does not pose a threat of the 
incidental taking of sea turtles. On May 1, 2017, the Department of 
State certified that 13 shrimp-harvesting nations and 4fisheries have a 
regulatory program comparable to that of the United States governing 
the incidental taking of the relevant species of sea turtles in the 
course of commercial shrimp harvesting and that the particular fishing 
environments of 26 shrimp-harvesting nations, one economy, and three 
fisheries do not pose a threat of the incidental taking of covered sea 
turtles in the course of such harvesting (83 FR 21295 May 5, 2017). All 
nations exporting wild-caught shrimp and shrimp products to the United 
States, regardless of whether they are certified under this provision, 
must also comply with the MMPA import rule, be included on the LOFF, 
and have a comparability finding. Nations in compliance with the MMPA 
import rule, but not certified under Public Law 101-162, cannot export 
wild-caught shrimp to the United States.

Classification Criteria, Rationale, and Process Used To Classify 
Fisheries

Process When Incidental Mortality and Serious Injury Estimates and 
Bycatch Limits Are Available

    If estimates of the total incidental mortality and serious injury 
were available and a bycatch limit calculated for a marine mammal 
stock, NMFS used the quantitative and tiered analysis to classify 
foreign commercial fishing operations as export or exempt fisheries 
under the category definition within 50 CFR 229.2 and the procedures 
used to categorize U.S. fisheries as Category I, II, or III, at https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-protection-act-list-fisheries.

Process When Only Incidental Mortality and Serious Injury Estimates 
Were Available

    In most cases, however, NMFS either did not receive any information 
or found that the information provided was incomplete, lacking detail 
regarding marine mammal interactions, and/or lacking quantitative 
information on the frequency of interactions. Where nations provided 
estimates of bycatch or NMFS found estimates of bycatch in published 
literature, national reports, or through other readily available 
sources, NMFS classified the fishery as an export fishery if the 
information indicated that there was a likelihood that the mortality 
and serious injury was more than remote. The code or designation in the 
LOFF for the determination ``presence of bycatch'' is recorded as ``P'' 
in the LOFF.

Alternative Approaches When Estimates of Marine Mammal Bycatch Are 
Unavailable

    Because bycatch estimates are lacking for most fisheries, NMFS 
relied on three considerations to assess the likelihood of bycatch or 
interaction with marine mammals, including: (1) Co-occurrence, the 
spatial and seasonal distribution and overlap of marine mammals and 
fishing operations; (2) analogous gear, evaluation of records of 
bycatch and assessment of risk, where such information exists, in 
analogous U.S. and international fisheries or gear types; and (3) 
overarching classifications, evaluation of gears and fishing operations 
and their risk of marine mammal bycatch (see section below for further 
discussion). Published scientific literature provides numerous risk 
assessments of marine mammal bycatch in fisheries, routinely using 
these approaches to estimate marine mammal mortality rates, identify 
information gaps, set priorities for conservation, and transfer 
technology for deterring marine mammals from gear and catch. Findings 
from the most recent publications cited in this Federal Register 
notice, often demonstrate level of risk by location, season, fishery, 
and gear. A summary of the information used to support the designations 
described below is available in the annotated bibliography and the 
expanded LOFF with references and comments, at www.nmfs.noaa.gov/ia/species/marine_mammals/mmpaloff.html.

Co-Occurrence Evaluation

    The co-occurrence of marine mammal populations with a commercial 
fishing operation can be a measure of risk. NMFS evaluated, when 
available, the distribution and spatial overlap of marine mammal 
populations and commercial fishing operations to determine whether the 
probability for marine mammal interactions or bycatch in that fishery 
is more than remote. Resources that NMFS used to consider co-occurrence 
include OBIS-SEAMAP https://seamap.env.duke.edu/, https://www.hsi.org/assets/pdfs/mapping_marine_mammals.pdf and https://www.conservationecologylab.com/uploads/1/9/7/6/19763887/lewison_et_al_2014.pdf. Additional sources in peer reviewed literature 
that document co-occurrence are Komoroske & Lewison 2015; FAO 2010; 
Watson et al., 2006; Read et al., 2006; Reeves et al., 2004. The code 
or designation for ``co-occurrence'' is recorded as ``C/O'' in the 
LOFF.

Analogous Gear Evaluation

    Where a nation did not provide documentation or information was not 
readily available on the amount of marine mammal bycatch in a fishery 
or the co-occurrence, NMFS classified a fishery as exempt or export by 
analogy to similar U.S. or international fisheries and gear types 
interacting with similar marine mammal stocks. NMFS consulted the 
United States' domestic MMPA List of Fisheries found at: https://www.nmfs.noaa.gov/pr/interactions/fisheries/2017_list_of_fisheries_lof.html when classifying international 
fisheries by analogy. NMFS also evaluated other relevant information 
including, but not limited to fishing techniques, gear used, methods 
used to deter marine mammals, target fish species, seasons and areas 
fished, qualitative data from logbooks or fisher reports, stranding 
data, the species and distribution of marine mammals in the area, or 
other factors. The code or designation for the determination 
``analogous gear'' is recorded as ``A/G'' in the LOFF. Gear types 
commonly used in U.S. fisheries, such as longline, gillnet, purse 
seine, trawl, and pot/trap, were identified as ``analogous gear'' in 
the justification section of the LOFF. Gear types not commonly used in 
U.S. waters, such as Danish seine, ring nets, lift nets or large pound 
nets off Southeast Asia, however, could not be compared to an analogous 
gear or fishery in the United States.

[[Page 11708]]

Classification in the Absence of Information

    When no analogous gear, fishery, or fishery information existed, or 
insufficient information was provided by the nation, and information 
was not readily available, NMFS classified the commercial fishing 
operation as an export fishery per the definition of ``export fishery'' 
at 50 CFR 216.3. These fishing operations will remain classified as 
export fisheries until the harvesting nation provides the reliable 
information necessary to classify properly the fishery or, in the 
course of revising the LOFF, such information becomes readily available 
to NMFS. The code or designation for the determination ``no 
information'' is recorded as ``N/I'' in the LOFF.

Multiple Codes and Additional Terms in the LOFF

    In some cases, NMFS recorded multiple codes as the rationale for a 
fishery classification. For example, NMFS may have received 
insufficient information from a nation, still lacks information in some 
columns, yet classified the fishery by analogy. In that instance, the 
codes used to classify the fishery would be: ``N/I, A/G.''
    Additional terms in the LOFF include ``none provided,'' ``no 
information,'' and ``none documented.'' ``None provided'' indicates the 
nation did not provide information and no information could be found 
through research and literature searches. ``None documented'' indicates 
that neither the nation nor reference material have documented 
interactions with marine mammals either through observers or logbooks. 
``No information'' indicates that though the nation provided relevant 
information about the fishery, it did not provide specific information 
and documentation on the marine mammal species interactions for that 
fishery or estimates of marine mammal bycatch.

Global Classifications for Some Fishing Gear Types

    Due to a lack of information about marine mammal bycatch, NMFS used 
gear types to classify fisheries as either export or exempt. Based on 
this information, NMFS reclassified some fisheries in the final LOFF. 
The detailed rationale for these classifications by gear type were 
provide in the Federal Register Notice for the draft LOFF (82 FR 39762; 
August 22, 2017) and are summarized here. In the absence of specific 
information showing a remote likelihood of marine mammal bycatch in a 
particular fishery, NMFS classified fisheries using these gear types as 
export, exceptions to those classifications are included in the 
discussion below.
    NMFS classified as export all trap and pot fisheries because the 
risk of entanglement in float/buoy lines and groundlines is more than 
remote, especially in areas of co-occurrence with large whales. 
However, NMFS classified as exempt trap and pot fisheries operating in 
the Gulf of Mexico and Caribbean due to the low co-occurrence with 
large whales in this region and an analogous U.S. Category III mixed 
species and lobster trap/pot fishery operating in the Gulf of Mexico 
and Caribbean. NMFS classifies as exempt small-scale fish, crab, and 
lobster pot fisheries using mitigation strategies to prevent large 
whale entanglements, including seasonal closures during migration 
periods, ropeless fishing, and vertical line acoustic release 
technology.
    NMFS has classified as export longline gear and troll line 
fisheries because the likelihood of marine mammal bycatch is more than 
remote. However, NMFS classified as exempt longline and troll fisheries 
with demonstrated bycatch rates that are less than remote or an 
analogous U.S. Category III fishery operating in the area where the 
fishery occurs. The entanglement rates from marine mammals depredating 
on longline fisheries is largely unknown. NMFS classifies as exempt 
snapper/grouper bottom-set longline fisheries operating in the Gulf of 
Mexico and the Caribbean because they are analogous to U.S. Category 
III bottom-set longline gear operating in these areas. NMFS also 
classifies as exempt longline fisheries using a cachalotera system 
which prevents and, in some cases, eliminates marine mammal hook 
depredation and entanglement.
    NMFS uniformly classified as export all gillnet, driftnet, set net, 
and pound net fisheries because the likelihood of marine mammal bycatch 
in this gear type is more than remote. No nation provided evidence that 
the likelihood of marine mammal bycatch in a gillnet fishery was less 
than remote.
    NMFS classified as export purse seine fisheries unless the fishery 
is operating under an RFMO that has implemented conservation and 
management measures prohibiting the intentional encirclement of marine 
mammals by a purse seine. In those instances, NMFS classifies the purse 
seine fisheries as exempt because the evidence suggests that, where 
purse seine vessels do not intentionally set on marine mammals, the 
likelihood of marine mammal bycatch is generally remote. However, if 
there is documentary evidence that a nation's purse seine fishery 
continues to incidentally kill or injure marine mammals despite such a 
prohibition, NMFS classified the fishery as an export fishery. 
Similarly, if any nation demonstrated that it had implemented a measure 
prohibiting the intentional encirclement of marine mammals by a purse 
seine vessel, that fishery would be designated as exempt, absent 
evidence that it continued to incidentally kill or injure marine 
mammals.
    NMFS has classified as export all trawl fisheries, including bream 
trawls and otter trawls, because the marine mammal bycatch in this gear 
type is more than remote, and this gear type often co-occurs with 
marine mammal stocks. However, the krill trawl fishery operating under 
changes to Commission for the Conservation of Antarctic Marine Living 
Resources (CCAMLR) in subareas 48.1-4 of CCAMLR is classified as exempt 
due to the conservation and management measure requiring marine mammal 
excluding devices and levels of marine mammal mortalities that are less 
than ten percent of the bycatch limit/PBR for marine mammal stocks that 
interact with that fishery.
    There are several gear types that NMFS classified as exempt because 
they are highly selective, have a remote likelihood of marine mammal 
bycatch, and have analogous U.S. Category III fisheries. These gear 
types are: Hand collection, diving, manual extraction, hand lines, hook 
and line, jigs, dredges, clam rakes, beach-operated hauling nets, ring 
nets beach seines, lift nets, cast nets, bamboo weir, and floating mats 
for roe collection.
    NMFS classified Danish seine fisheries as exempt based on the 
remote likelihood of marine mammal bycatch because of a lack of 
documented interactions with marine mammals. The exception are Danish 
seine fisheries with documentary evidence of marine mammal 
interactions, which NMFS classified as export.
    Finally, NMFS classified as exempt most forms of aquaculture, 
including lines and floating cages, unless documentary evidence 
indicates marine mammal interactions or entanglement, particularly of 
large whale entanglement in aquaculture seaweed or shellfish lines, or 
nations that permit aquaculture facilities to intentionally kill or 
injure marine mammals.

Summary

    NMFS reviewed information from or related to more than 160 trading 
partners. NMFS eliminated 25 nations from the LOFF (see Table 1 in the 
Federal Register notice--Fish and Fish

[[Page 11709]]

Product Import Provisions of the Marine Mammal Protection Act List of 
Foreign Fisheries 82 FR 39762; August 22, 2017). The final LOFF is 
composed of 910 exempt and 2,386 export fisheries from 138 nations (or 
economies). The LOFF, an expanded LOFF containing references, a list of 
Intermediary nations (or economies) and their associated products, and 
a list of fisheries and nations where the rule does not apply can found 
at: www.nmfs.noaa.gov/ia/species/marine_mammals/mmpaloff.html. An 
annotated bibliography with supporting references can be found at: 
www.nmfs.noaa.gov/ia/species/marine_mammals/mmpaloff.html.

General Trends in the LOFF

    Gillnets represent the vast majority of the export fisheries with 
documented marine mammal bycatch. Mitigation measures for gillnets are 
few. Active sound emitters such as ``pingers'' are used in gillnet 
fisheries to reduce small cetacean bycatch. However, pingers are not 
effective for all small cetacean species and may be less effective in 
operational fisheries than research programs (Dawson et al., 2013). 
Given the limited mitigation options, nations should consider swapping 
gillnets for other non-entangling gear, where there is overlap between 
the fishery and marine mammal populations.
    The LOFF highlighted the clear need for bycatch monitoring programs 
to better estimate marine mammal bycatch and to identify where 
mitigation efforts are most needed. For example, several nations 
recommended that longline and purse seine fisheries be classified as 
exempt fisheries because there are few interactions with marine 
mammals. However, the logbook and observer data NMFS received did not 
substantiate that the likelihood of bycatch in these fisheries is 
remote.
    NMFS believes accurate classification of longline fisheries, 
especially for tuna, and purse seine fisheries for pelagic species 
would benefit from monitoring programs (e.g., observer programs) or 
analyses of observer and logbook programs to assess the bycatch rates 
associated with these gear types. RFMOs are well-situated to evaluate 
marine mammal bycatch rates in tuna and swordfish longline fisheries. 
Information from these sources could be used to determine whether the 
likelihood of marine mammal bycatch is remote. Nations should strongly 
consider bycatch monitoring programs as a core element in any 
regulatory program and a key to the appropriate classification of their 
fisheries.

Impact of the LOFF on Largest Trading Partners by Volume and Value

    Table 1 contains the twenty largest exporters to the United States 
by volume and value, an assessment of their data quality, and their 
risk of marine mammal bycatch. NMFS based its assessment of data 
quality on the completeness and detail of the information each nation 
provided. The number of export and exempt fisheries is the tally in the 
final LOFF. The overall risk of marine mammal bycatch is based on the 
type of gear most prevalent in the nation's fisheries and available 
information on marine mammal fisheries interactions.
    Chile, Peru, Argentina, and Ecuador have large numbers of small 
gillnet, purse seine, and trawl vessels with marine mammal bycatch. 
Canada's pot fisheries for lobster and snow crab have high levels of 
large whale bycatch. Canada also has bycatch in its gillnet fisheries 
and permits the intentional killing of marine mammals in aquaculture 
operations. Indonesia, Thailand, and Vietnam have large processing and 
aquaculture sectors. These nations also have gillnet fisheries; 
however, their fisheries are poorly monitored, making accurate bycatch 
estimates and the development of mitigation measures for marine mammal 
bycatch difficult. NMFS may be able to reclassify these fisheries as 
exempt in the next iteration of the LOFF if these nations estimate 
their marine mammal bycatch or provide detailed information about their 
fishery operations.
    Japan's marine mammal bycatch is particularly large in its pound 
net fisheries, whereas the Russia's bycatch is likely in its pot and 
trawl fisheries. Mexico's marine mammal bycatch includes its gillnet 
and trawl fisheries in the Gulf of Mexico and the Gulf of California. 
India's fishery bycatch is predominantly in its coastal gillnet 
fisheries, which include thousands of vessels. Taiwan has bycatch in 
its longline fisheries and drift gillnet fisheries. The United Kingdom 
has bycatch of harbor porpoise and common dolphins in gillnet and trawl 
fisheries. Russia and China provided little to no information to enable 
a full assessment of their fisheries and level of marine mammal risk.
    Nations, some not included in this table, with high levels of 
documented marine mammal bycatch include South Korea (pound nets and 
gillnets); New Zealand (all gear types, especially trawl); and 
Australia (trawl and longline). However, NMFS recognizes that this 
evaluation may be influenced by the advanced assessment capabilities of 
these nations. New Zealand, Norway, and South Korea may be the only 
nations to have currently calculated a bycatch limit. Norway's 
information demonstrates that bycatch in its gillnet fisheries of 
harbor porpoise, gray seal, and harbor seal exceed the bycatch limits 
calculated for these species. South Korea, also has bycatch of several 
species of marine mammals in gillnet fisheries that exceed the bycatch 
limit.

  Table 1--List of the Twenty Largest Exporting Nations by Volume and Value and an Assessment of the Data They
                                Provided and Their Risk of Marine Mammal Bycatch
----------------------------------------------------------------------------------------------------------------
                                                                      Number of
                Nation                   Quality of data supplied  export/ exempt  Overall risk of marine mammal
                                                                      fisheries               bycatch
----------------------------------------------------------------------------------------------------------------
Canada................................  Excellent................         227/122  Average/High.
China.................................  Poor.....................           107/4  Unknown.
Indonesia.............................  Fair.....................           11/25  Low.
Thailand..............................  Fair.....................           15/18  Average.
Chile.................................  Good.....................           40/43  Average/High.
India.................................  Poor.....................            13/3  High.
Vietnam...............................  Fair.....................           20/14  Low/Average.
Ecuador...............................  Good.....................            18/6  High.
Mexico................................  Fair.....................           31/29  Average.
Russia................................  Poor.....................           109/1  Average/High.
Japan.................................  Poor.....................           89/83  High.
Philippines...........................  Good.....................            14/6  Low.

[[Page 11710]]

 
Peru..................................  Good.....................           69/26  Average/High.
Argentina.............................  Good.....................           20/13  Average.
Iceland...............................  Excellent................            27/5  Average.
Honduras..............................  Poor.....................             4/6  Unknown.
Taiwan................................  Good.....................            13/4  Average/High.
South Korea...........................  Excellent................           94/58  High.
New Zealand...........................  Excellent................           77/25  Average/High.
United Kingdom........................  Good.....................           44/10  Average/High.
----------------------------------------------------------------------------------------------------------------

Response to Comments and Changes From the Draft LOFF

    NMFS received more than 35 comment letters on the draft LOFF for 
2017 (82 FR 39762; August 22, 2017). Most of the comments were 
submitted by nations. Several non-governmental organizations (NGO) and 
industry groups also submitted comments (see general comments below), 
all of which are summarized below.
    Several comments received were not germane to the draft LOFF and 
are not addressed in this section. These comments include references to 
actions outside the scope of the statutory mandate or actions covered 
under other rulemakings. Comments received are available on the 
internet at https://www.regulations.gov under Docket ID NOAA-NMFS-2017-
0084.
    In the following section, NMFS summarizes and responds to the 
comments applicable to the LOFF. NMFS organized the summary and 
response to comments as follows: (1) Changes to the LOFF and 
observations that apply to all nations (or economies), (2) comments and 
changes to the LOFF by nation (or economy), (3) general comments not 
associated with a nation (e.g., public, NGOs, industry), and (4) 
responses to questions posed in the draft LOFF (see 82 FR 39762, August 
22, 2017).
(1) Overview of Comments Received and Changes Made to the LOFF
Nations Failing To Respond
    More than 64 nations (or economies) did not respond to the request 
for public comment on the draft LOFF. These nations (or economies) 
include: The Bahamas, Bahrain, Bangladesh, Barbados, Benin, Brazil, 
British Virgin Islands, Brunei, Cameroon, Cape Verde, China, Croatia, 
Dominican Republic, Ecuador, Egypt, El Salvador, Federated States of 
Micronesia, Fiji, French Polynesia, The Gambia, Ghana, Grenada, Guinea, 
Guyana, Haiti, Honduras, Iran, Israel, Ivory Coast, Kenya, Kiribati, 
Liberia, Libya, Maldives Islands, Marshall Islands, Mauritania, 
Mozambique, Namibia, Nicaragua, Nigeria, Palau, Papua New Guinea, Peru, 
Reunion, Russia, Saudi Arabia, Senegal, Sierra Leone, South Africa, Sri 
Lanka, Saint Kitts Nevis, Saint Lucia, Saint Pierre Miquelon, Saint 
Vincent Grenadine, Tanzania, Tonga, Turkey, Turks and Caicos Islands, 
Ukraine, United Arab Emirates, Vanuatu, Venezuela, and Western Samoa. 
As a result, the fishery classifications for these nations (or 
economies) remain unchanged. Failure of these nations (or economies) to 
provide information regarding fisheries for which NMFS has none may 
result in a relatively high percentage of export fisheries among this 
group. This is also the case for several other nations (or economies) 
that did respond to the request for comment but did not provide 
information on fisheries under the category ``export fishery with no 
information.'' The category ``export fishery with no information'' 
includes products exported by nations (or economies) for which NMFS has 
been unable to find information (e.g., gear type and area of 
operation), and fisheries with documented marine mammal bycatch 
associated with a nation and gear type but for which no target species 
of fish or fish products was identified. NMFS urges nations to provide 
the information that is lacking and as much detail as possible about 
the fishery, its operational characteristics, and its interactions with 
marine mammals, including applicable references. It is in the interest 
of nations (or economies) to provide the requested information because 
it allows NMFS to determine whether the MMPA import rule applies to all 
of the fish and fish products exported to the United States or only to 
a particular fishery or fisheries, whether the nation is only a 
processor of that fish or fish product, and, if a harvester of that 
fish or fish product, what fishery classification is appropriate.
Changes to CCAMLR Fisheries
    For fisheries operating in the CCAMLR Convention Area, NMFS made 
the following changes: Fisheries for krill in the Antarctic Peninsula 
region have been combined into a single fishery pursuant to CCAMLR 
Conservation Measure 51-01, which manages krill fisheries in Subareas 
48.1-4. This consolidation applies to the following nations fishing for 
krill in the CCAMLR Convention Area: Chile, China, Japan, Norway, 
Poland, Russia, Republic of Korea, and Ukraine. NMFS changed the 
classification for these fisheries from export to exempt because all 
trawl fisheries operating in CCAMLR are required to use marine mammal 
excluding devices (for krill fisheries: CM 51-01, paragraph 7: 
``Mitigation''). Additionally, the bycatch limit for seals in this 
region has been calculated at 88,200 individuals (see comments from 
Norway below) and the estimated incidental mortality and serious injury 
for all krill fisheries operating in CCAMLR is less than ten percent of 
the bycatch limit, making these fisheries exempt.
    For nations with toothfish longline fisheries operating in both 
Subarea 88.1 and 88.2, NMFS combined these fisheries into one fishery. 
Toothfish longline fisheries operating in the CCAMLR convention area 
are required to carry one observer appointed in accordance with the 
CCAMLR Scheme of International Scientific Observation and, where 
possible, one additional scientific observer. Based on the observer and 
logbook information in the working group and Secretariat reports, 
toothfish longline fisheries with no documented interactions in CCAMLR 
were classified as exempt. NMFS classified as export toothfish longline 
fisheries with documented interactions, including bycatch and 
depredation.

[[Page 11711]]

    Icefish and toothfish trawl fisheries operating in the CCAMLR 
convention area are subject to the same observer requirements. 
Therefore, NMFS classified as exempt icefish and toothfish trawl 
fisheries with no document marine mammal bycatch.
(2) Summary of Changes to LOFF Based on Information From Nations (or 
Economies) and Comments and Responses
Antigua and Barbuda
    Upon further review of fish and fish product imports to the United 
States from Antigua and Barbuda over the last 17 years, NMFS removed 
squid and scallops from the category ``export fisheries with no 
information.'' Each product was imported only once, squid in 2000, and 
scallops in 2009. Additionally, NMFS could not find recognized 
commercial fisheries in the available literature, management plans for 
these products, or any evidence this product is processed by this 
nation. Therefore, these products are likely re-exports and have been 
removed from the final LOFF.
Argentina
    Changes to the Argentine export fisheries based on the information 
Argentina provided include combining into one export fishery: Toothfish 
longline fisheries operating in CCAMLR subareas 88.1 and 88.2; and 
toothfish longline and trawl fisheries operating off the coast of 
Tierra del Fuego, the Isla de los Estados and off the province of 
Buenos Aires; and all Argentine hake bottom trawl vessels (35 coastal, 
183 freezer, and 98 refrigerated high-seas vessels) operating in the 
provinces of Chubut, Santa Cruz, and Rio Negro.
    Additionally, NMFS removed from the LOFF the following export 
fisheries: The Argentine hake gillnet fishery; the tadpole lingcod 
(Patagonian cod) bottom trawl fishery; Patagonian blenny gillnet, 
trammel net, and purse seine fisheries; silver warehou and Argentine 
goatfish trawl fisheries; and Sao Paolo squid and Penaeid shrimp 
trammel nets and bottom trawl and squid bottom trawl, because these 
fisheries are artisanal fisheries for domestic consumption.
    NMFS also changed the midwater and bottom trawl fisheries and 
surrounding net fisheries for blue grenadier to bottom trawl fishery 
for Patagonia grenadier; added Atlantic bonito, Argentine short-fin 
squid, and silversides trawl fisheries to the demersal coastal trawl 
fisheries; and combined all Argentine red shrimp bottom net outrigger 
vessel types into one fishery. NMFS removed from the LOFF the artisanal 
trammel net, as the gear type is not used for this species.
Australia
    Changes made to Australian fisheries include clarification of 
multispecies fisheries and their associated gear types and vessel 
numbers. NMFS changed the multispecies and garfish hauling net fishery 
operating in New South Wales from export to exempt because this fishery 
is analogous to the Category III, U.S. beach seine fishery. The gear is 
deployed solely from beaches limiting the probability of co-occurrence 
with and bycatch of marine mammals.
    NMFS changed the New South Wales eastern rock lobster trap from 
export to exempt; this fishery uses an at-call acoustic release system 
(Galvanic Time Release (GTR)) that submerges the head-gear of the trap 
and has been effective in eliminating marine mammal entanglements. NMFS 
also changed the giant crab pot fishery and the rock lobster pot 
fishery in Southern Australia from export to exempt because these 
fisheries operate solely during the summer months and close during the 
winter months when whales migrate through the region, significantly 
reducing the likelihood of entanglement.
    Finally, NMFS changed from export to exempt the South Australian 
sardine purse seine fishery. In this fishery, Australia requires, as 
part of the mandatory Code of Practice, the delayed setting of nets if 
marine mammals are present in the area, and immediate release and safe 
handling practices if a mammal is detected in the net. A fisheries-
independent observer program monitors the effectiveness of this 
practice and an annual report is generated on bycatch levels for the 
fishery. This practice is comparable to the RFMO conservation and 
management measure prohibiting the intentional encirclement of marine 
mammals by tuna purse seine fisheries; for this reason this fishery has 
been changed to exempt.
    Under the category ``Export Fisheries with No Information'' NMFS 
removed the fishery for grouper because further analysis of imports 
from Australia for the preceding 17 years indicates only 2 years of 
small-scale and intermittent trade of grouper with the last import 
being 770 kg in 2015. Likewise, lobster (Homerus spp.) was also removed 
as this was likely a reporting error. Live lobsters received from 
Australia are rock lobster and would not be North Atlantic lobster 
species.
    Australia Comment 1: Australia recommended removing humpback whale 
and southern right whale entanglements from the Western Australia rock 
lobster pot fishery.
    Response: NMFS cross-checked these numbers against what was 
reported to the International Whaling Commission (IWC) for 2012 and 
2015. The entanglement numbers were corrected against what was reported 
to the IWC for 25 humpback whales (23 individuals in 2012 and 3 
individuals in 2015) and two southern right in 2012. Absent documentary 
evidence that these entanglements were not the result of this fishery, 
best available information indicates that these bycatch estimates 
remain associated with the Western Australia rock lobster pot fishery.
    Australia Comment 2: Australia commented on reported bycatch from 
the Geelong Star, a midwater trawling vessel for small pelagics. 
Australia asserted that the bycatch associated with this vessel was 
incorrectly applied to the southern bluefin tuna purse seine fishery. 
Australia further asserted that reports from the fishing actions of the 
Geelong Star, a ship flagged to another nation, should not have been 
included in the draft LOFF.
    Response: NMFS agrees because Australia has corrected the 
administrative record associated with the LOFF.
    Australia Comment 3: Australia maintains that all Australian 
fisheries that export product must meet the rigorous legislative 
requirements set out under the Environment Protection and Biodiversity 
Conservation Act 1999 (EPBC Act). The EPBC Act assessment process means 
that all export fisheries must meet minimum requirements for 
ecologically sustainable management before they are accredited to 
export under Australian law. The effect of the EPBC Act is to pursue a 
policy on marine mammal bycatch that seeks to eliminate, to the 
furthest practicable extent, marine mammal interactions in Australian 
export fisheries through monitoring, reporting and mitigation measures 
to avoid killing or injuring marine mammals. The EPBC Act applies to 
all Australian export fisheries, whether they are a Commonwealth, state 
or a Northern Territory fishery. The Australian Government believes 
that an alternative to the United States assessing each Australian 
export fishery individually could be to assess whether the requirements 
of the EPBC Act are sufficient to meet the requirements of the U.S. 
MMPA import rule to determine whether the two systems are comparable in 
effectiveness.
    Response: NMFS is amenable to working with Australia in determining 
the most appropriate method for Australia's fisheries to achieve a

[[Page 11712]]

comparability finding determination under the MMPA import rule.
    Australia Comment 4: Australia commented on the use of co-
occurrence and analogous gear type as a basis for classifying fisheries 
as ``export.'' Australia does not agree with this classification 
system. Australia indicated fisheries with no or low levels of reported 
marine mammal interactions and that the gear types used, in conjunction 
with the locations of these fisheries, justifies finding a remote 
likelihood of interaction; therefore, Australia asserted these 
fisheries should be classified exempt.
    Response: NMFS appreciates Australia's viewpoint and the 
information it provided on its fisheries. Without more detailed 
information, including summaries of logbook or observer data for these 
fisheries, rationale for why the gear cannot or does not interact with 
marine mammals, or information on the lack of co-occurrence, NMFS does 
not find adequate rationale to reclassify these fisheries.
    Australia Comment 5: Australia commented that they were unclear why 
the CCAMLR toothfish fisheries were split and questioned from where 
additional interactions data was obtained.
    Response: The toothfish fisheries are split by fishing area and by 
gear type. Based on public comment, NMFS has now combined the fisheries 
for toothfish operating in subareas 88.1 and 88.2. The data on marine 
mammal interactions in these fisheries before 2012 was obtained from 
published CCAMLR reports of fishery bycatch.
    Australia Comment 6: For the Commonwealth prawn fishery and tuna 
longline fishery, Australia considers the number of reported marine 
mammal interactions over the reported five-year period to indicate a 
remote likelihood of interaction and therefore exempt status.
    Response: NMFS classified these fisheries based on analogous gear 
types in U.S. fisheries and historic interactions in these Australian 
fisheries. Several prawn fisheries have documented interactions with 
marine mammals such that the likelihood of incidental mortality and 
serious injury is more than remote. Marine mammals interact with and 
predate on bait and catch in the tuna longline fishery. Absence 
sufficient documentary evidence, NMFS determined, based on the 
predation rate, the likelihood of marine mammal mortality and serious 
injury is more than remote. Also, NMFS is unaware of best practice 
guidance or mitigation measures to reduce marine mammal interactions or 
bycatch in tuna longline fisheries. NMFS welcomes further analyses of 
the bycatch rates associated with these fisheries, and an analysis of 
the bycatch compared to the bycatch limits for the species interacting 
with these fisheries. Moreover, NMFS looks forward to working with 
Australia to achieve a bycatch risk assessment of marine mammal 
interactions in tuna longline fisheries in the Indian Ocean and Western 
and Central Pacific Ocean.
The Bahamas
    Changes made to Bahamian fisheries include combining all hand 
collection exempt fisheries for conch, coral, and sponge into one 
fishery. No further changes were made.
Belgium
    Based on the European Union's information, three export fisheries 
were added: Northern prawn beam trawl, sole otter trawl, and a northern 
prawn otter trawl. All fisheries operate in the southern and central 
North Sea and interact with harbor porpoise. Thirteen fisheries are 
listed as export fisheries with no information.
Belize
    No fishery was reclassified, and information is lacking for several 
fisheries including the snapper, grouper, finfish gillnet fishery; 
shrimp trawl fishery, tuna longline and purse seine fisheries operating 
under Inter-American Tropical Tunas Commission (IATTC) and 
International Commission for the Conservation of Atlantic Tunas 
(ICCAT), and the mackerel and sardine trawl fishery.
    Belize Comment 1: Belize stated that the humpback whale reported by 
Breakingnewsbelize.com was observed stranded for approximately two 
weeks in the waters off Puerto Barrios, Guatemala. The whale floated to 
Belizean waters where it eventually died. At its death, the whale was 
not entangled in gillnet; consequently, Belize asserts the cause of 
death was likely starvation, exhaustion or sickness. Belize maintains 
there are no records of humpback whales entangled in shark gillnets and 
the presence of large cetaceans in Belizean water is uncommon because 
Belizean waters are not a migratory, feeding or breeding area due to 
the shallow Belize Barrier Reef System. Belize further notes that over 
the last decade, no dolphin or West Indian manatee has reportedly died 
as a result of interactions with the shark gillnet fishery.
    Response: NMFS notes Belize's comments; however, gillnets have, 
across a global ranges of fisheries, documented interactions with 
marine mammals, including whales, dolphins, and manatees. NMFS also has 
data indicating a co-occurrence of marine mammals and gillnet fisheries 
within Belize's Exclusive Economic Zone (EEZ). Without more substantial 
documentation about the Belize shark gillnet fishery, including logbook 
or observer data summaries, NMFS cannot reclassify this fishery as 
exempt.
    Belize Comment 2: Belize suggests that the shark longline fishery 
occurs in waters outside West Indian manatee habitat, so interactions 
with the fishery are likely negligible. Also, Belize stated there are 
no documented cases of dolphin bycatch in shark longlines in Belize. 
Therefore, Belize recommended the removal of dolphins and West Indian 
manatee from the list of species interacting with the shark longline 
fishery.
    Response: NMFS notes Belize's comments. Absent more substantial 
documentation about the Belize shark longline fishery and marine mammal 
habitat utilization, NMFS cannot reclassify this fishery as exempt or 
change the list of marine mammals interacting with this fishery.
Canada
    Based on analysis of Canada's information, the following fisheries 
were reclassified as exempt fisheries as these fisheries operate in 
inland waters and have no documented marine mammal interactions or co-
occurrence: Eel drift gillnet fishery operating in the gulf region, 
shad set gillnet fisheries operating in the gulf and Maritimes region, 
and smelt gillnet fishery operating in the gulf region. All chinook 
salmon troll fisheries operating in the Pacific region were 
reclassified as exempt as this gear type and fishery is analogous to 
the Alaska, California, Oregon, and Washington salmon troll fisheries 
which are listed as Category III fisheries. Kelp aquaculture in New 
Brunswick was reclassified as exempt as there are no documented marine 
mammal interactions. NMFS also reclassified as exempt several beach 
seine, Danish seine, jig and handline fisheries because this gear type 
has a remote likelihood of marine mammal bycatch. However, cunner, 
haddock, halibut, and cod aquaculture operations in New Brunswick 
maintained an export classified due to pinniped interactions.
    Additionally, Canada added more than 46 new export fisheries and 
more than 17 exempt fisheries across all species, gear types, and 
areas. These fisheries were not included in the original draft LOFF. No 
marine mammal bycatch estimates were provided for the newly added 
export fisheries.

[[Page 11713]]

Chile
    Based on the information provided by Chile, where appropriate, NMFS 
updated the numbers of vessels participating in various fisheries, and 
consolidated fisheries by fishing area.
    Chile Comment 1: Chile requested that the Atlantic, salmon, coho 
salmon, and rainbow trout cage aquaculture operations be reclassified 
as exempt. The rationale includes Chile's estimate that the population 
of South American sea lions is 197,000 animals and increasing. Chile 
requires the use of multifilament, 10-inch mesh, nylon antipredator 
nets (this mesh size prevents sea lion entanglement) that envelop the 
entire box-type salmon cage, creating a physical barrier that prevents 
sea lion depredation of stocked fish. Chile noted that Supreme Decree 
DS320/2002: Environmental regulation for aquaculture, regulates sonic 
devices that may be used to deter wildlife from approaching farm sites. 
To further support its argument for reclassification, Chile stated that 
a large percentage of salmon farms are certified by international 
standards, including voluntary standards requiring information about 
how aquaculture products are produced.
    Response: Chile provided no bycatch estimates. Without estimates of 
the number of sea lions either entangled or lethally removed in its 
aquaculture operations, NMFS cannot determine if the incidental 
mortality and serious injury of sea lions in aquaculture operations is 
remote. Chile did not provide a peer-reviewed study citation or other 
empirical research to support the claim that 10-inch mesh nets never 
entangle pinnipeds. Also, Chile did not provide the details of 
regulations governing the use of sonic deterrence devices at salmon 
farms. Finally, NMFS does not accept third-party certifications as the 
basis for classifying fisheries as either exempt or export or as the 
sole basis for a comparability finding. To continue exporting fish or 
fish products to the United States, Chile must adopt regulations that 
reduce marine mammal incidental bycatch and prohibit intentional 
mortality and serious injury at aquaculture facilities or demonstrate 
that it has procedures to reliably certify that exports of fish and 
fish products to the United States are not the product of a commercial 
fishing operation that permits the intentional killing or serious 
injury of a marine mammal unless the intentional mortality or serious 
injury of a marine mammal is imminently necessary in self-defense or to 
save the life of a person in immediate danger. The voluntary standards 
Chile references are insufficient evidence for reclassifying this 
fishery as exempt as those standards permit the lethal removal of 
predators. Atlantic salmon, coho salmon, and rainbow trout cage 
aquaculture operations remain classified as an export fishery.
    Chile Comment 2: Chile requested that the ``Patagonian toothfish--
Southern crane eel, industrial longline fishery'' be separated into two 
fisheries and listed as exempt. The Fisheries Development Institute, 
main national research institution of fishing and aquaculture, has 
implemented onboard observer programs in these fisheries for more than 
five years. The reports of these scientific observation programs 
indicate that although there is interaction with killer whales and 
sperm whales, there is no mortality of these mammals in either the 
Patagonian toothfish, southern hake, and pink cusk eel industrial 
longline fishery or the Patagonian toothfish industrial longline 
fishery.
    Response: NMFS has reviewed the observer data and agrees. The 
Patagonian toothfish--Southern hake--Pink cusk eel, industrial longline 
and Patagonian toothfish, industrial longline fisheries have been re-
classified as exempt fisheries.
    Chile Comment 3: Chile requested that NMFS reclassify as exempt the 
Patagonian toothfish, artisanal bottom longline, XI Region (South of 
47[deg] S) to XII Region fishery, and Patagonian toothfish, artisanal 
bottom longline, XV to XI Regions (North of 47[deg] S)' fishery because 
there are no recorded marine mammal interactions in these fisheries 
and, these fisheries use the same fishing gear, and operate in the same 
area, as the industrial fleet which has zero marine mammal mortality.
    Response: Absent observer summary data NMFS finds no rationale to 
change the export classification. Also, these fisheries interact with 
southern sea lions as opposed to sperm and killer whales that interact 
with the industrial fleet.
    Chile Comment 4: Chile asked why the southern king crab artisanal 
trap, southern king crab industrial trap and false king crab artisanal 
traps fisheries are classified as export. Chile requested these 
fisheries be reclassified as exempt because traps are unlikely to kill 
or injure marine mammals and, since the early 1990s, Chile has not 
permitted the use of marine mammals as bait but instead officially 
supplies fish bait for these fisheries (see Memorandum of Understanding 
between the U.S. National Marine Fisheries Service (NMFS) and the 
Chilean Servicio Nacional de Pesca (Sernapesca), signed in 1995 and 
extended in 2004 and in 2015 at https://www.nmfs.noaa.gov/ia/agreements/bilateral_arrangements/chilebilat.pdf).
    Response: NMFS is not classifying these fisheries as export based 
on their historic use of marine mammals as bait. Rather, NMFS has 
classified these fisheries as export fisheries because the risk of 
incidental mortality or serious injury in vertical buoy lines and 
groundlines is more than remote for small cetaceans and large whales.
Costa Rica
    Based on the information Costa Rica provided NMFS added to the list 
of export fisheries a bonito gillnet fishery and a flatfish, sole 
gillnet and trawl fishery. NMFS also combined the operating areas of 
the Eastern Tropical Pacific and Tropical Atlantic into one area for 
the following fisheries: The dolphinfish longline fishery; the shark, 
swordfish longline fishery; the shrimp trawl fishery; and the shrimp 
gillnet fishery.
    Costa Rica Comment: Costa Rica stated there is no marine mammal 
mortality in their sole, sardine, squid and shrimp trawl fisheries. 
Costa Rica further stated that during more than 100 inspections of 
shrimp trawl vessels no dolphins have been found. Likewise, Costa Rica 
stated that no dolphins have been found in sardine purse seine nets 
operating in the Gulf of Nicoya, near Puntarenas.
    Response: Absent detailed information about Costa Rica's inspection 
program, observer program or logbook requirements, NMFS did not have 
any basis to change the classification of these fisheries. NMFS urges 
Costa Rica to provide additional details on the percentage of the fleet 
that is either observed or inspected, total average annual estimates of 
mortality and serious injury of marine mammals over the last five years 
for each fleet with observer, inspection, or logbook requirements, and 
whether such estimates are extrapolated to the entire fleet or are only 
for observed vessels or those reporting. Using such information, NMFS 
can re-evaluate these fisheries.
Cyprus
    Based on the information Cyprus provided through the European 
Union, NMFS added an Atlantic Bluefin tuna purse seine fishery 
operating in the Eastern Mediterranean Sea, Levant area (FAO division 
37.3.2) to the list of export fisheries for Cyprus.
Denmark
    Based on the information Denmark provided through the European 
Union, NMFS updated the numbers of vessels

[[Page 11714]]

participating in various fisheries, and consolidated fisheries by 
fishing area for fisheries for which there is no information.
    In analyzing Denmark's export data, NMFS removed the rock lobster 
fishery from the ``export fisheries with no information'' category as 
this product was only imported once in the past 17 years, in 2015, and 
in very small quantities. The predominant lobster export from Denmark 
to the United States is Norwegian lobster. NMFS also removed the 
cuttlefish fishery as this product was imported only once in the past 
17 years, in 2016, and in very small quantities. The cuttlefish was 
imported as ``preserved'' indicating this is likely a re-exported 
product.
    Also under ``export fisheries with no information'' Denmark 
provided fishery information for their Marine Stewardship Council (MSC) 
certified fisheries but, upon further analysis, NMFS removed the 
following fisheries from the LOFF because Denmark does not export these 
products to the United States; whiting and blue whiting, cusk eel, 
lingcod, smelt, monkfish, skates, capelin, pollock, hake, oyster, and 
clams.
    NMFS changed the mussel dredge fishery from ``export fishery with 
no information'' to an exempt fishery as this coastal gear type is 
unlikely to interact with marine mammal stocks.
Estonia
    Based on the information Estonia provided through the European 
Union, NMFS updated the numbers of vessels participating in various 
fisheries, and the area of operation of fishing vessels. NMFS also 
added an exempt fishery for cod and other species operating in the 
Northeast Atlantic and added two export fisheries, one for perch, 
herring and pike-perch, and one for herring and sprat, operating in the 
International Council for the Exploration of the Sea (ICES) Area IIId 
of the Northeast Atlantic.
    Additionally, NMFS removed from the LOFF the fisheries for 
Greenland halibut as the United States has not imported Greenland 
halibut from Estonia in the past 17 years.
Falkland Islands
    Falkland Islands Comment 1: The Falkland Islands noted it concurs 
with the classification of its fisheries as exempt. The Falkland 
Islands further noted that with respect to ``Marine Mammal Bycatch 
Estimates'' the entry in the LOFF is `None Documented.' In its original 
submission, the Falkland Islands referenced its observer program, which 
includes significant coverage of its fisheries on the LOFF. The 
observer program records the presence of marine mammals and any 
interactions. No harmful interactions or incidental mortality or 
serious injury have been recorded during the last five years.
    Response: ``None Documented'' is the correct reference based on the 
information the Falkland Islands provided. ``None documented'' 
indicates that through observer programs or logbooks neither the nation 
nor additional reference material have documented interactions with 
marine mammals.
Faroe Islands
    Faroe Islands Comment 1: The Faroe Islands noted that in the draft 
LOFF only the Faroese scallop fishery is categorized as exempt while 
all other fisheries, including aquaculture, are categorized as export 
fisheries. The Faroe Islands asserts all its fisheries should be 
categorized as exempt because there are no interactions with or bycatch 
of marine mammals in their fisheries. Specifically, there are no marine 
mammal interactions or bycatch in the flatfish, sole, plaice, halibut 
trawl fishery, groundfish, cod, haddock, pollock trawl and longline 
fisheries, herring mid-water trawl fishery, and smelt trawl fishery. 
Further, according to logbooks, the mackerel mid-water trawl fishery 
catches zero to two pilot whales annually.
    Response: NMFS did not reclassify these fisheries. The Faroe 
Islands' rationale for reclassifying its fisheries is that there is no 
reported marine mammal interactions or bycatch in the logbooks for 
Faroese fisheries. NMFS understands that all Faroese fishing vessels 
must maintain a log of their fishing activities for each set or haul, 
and that this catch logbook is sent to the Fisheries Inspection. NMFS 
understands that fishing vessels are also instructed to report 
interference or bycatch of marine mammals in a special column 
(``vi[eth]merkingar'', meaning remarks) in the catch logbook. Evidence 
suggest that bycatch may not be properly and consistently recorded or 
analyzed without a specific entry. By relegating marine mammal bycatch 
data recording to remarks, fishermen may overlook recording their 
marine mammal bycatch. Additionally, NMFS is concerned that data found 
only in the remarks may not be consistently entered into a database. 
While the Faroe Islands describes that pilot whale bycatch by the 50 
vessels operating in the mackerel mid-water trawl fishery is ``rare,'' 
this cannot be substantiated without additional information on whether 
the reported bycatch of 2 animals annually is unextrapolated vessel 
reports or an extrapolated bycatch estimate for the entire fleet. North 
Atlantic Marine Mammal Commission (NAMMCO) (2016) lists fisheries in 
the Faroe Islands with marine mammal bycatch including pelagic pair 
trawling for mackerel, blue whiting and herring trawls; purse-seines; 
and shallow-water gillnets set for herring. According to NAMMCO (2016) 
the reliability of the reported bycatch data has never been assessed 
and bycatch data are missing for all fisheries. NMFS suggests that the 
Faroe Islands provide additional information about its logbook system, 
historic marine mammal bycatch estimates for each fishery, detailed 
bycatch estimates (including reported vs extrapolated estimates) for 
the mackerel mid-water trawl fishery, and further detail about the 
reliability of its bycatch data and the co-occurrence of marine mammals 
in all its fisheries.
    Faroe Islands Comment 2: The Faroe Islands recommended that all 
trap fisheries be classified exempt. The Faroe Islands claim that the 
lobster and snow crab trap fisheries have no reported marine mammal 
bycatch in logbooks. The lobster trap fishery's trap opening size is 25 
centimeters, which prevents marine mammals from entering traps. The 
snow crab trap fishery is conducted in water depths of less than 270 
meters outside 12 nautical miles in the Svalbard zone.
    Response: NMFS did not reclassify these fisheries. Bycatch of 
marine mammals does not occur from animals entering the trap but from 
animals becoming entangled in buoylines and groundlines. Snow crab 
fisheries in several nations (e.g., Canada) have documented bycatch of 
large whales in snow crab traps and lines. On this basis, NMFS retained 
the classification of these fisheries as export.
    Faroe Islands Comment 3: The Faroe Islands stated that Faroese 
authorities--ministries together with natural research institutes--are 
establishing legislation and management plans to secure a sustainable 
development of the grey seal stock, the only coastal seal species in 
the Faroe Islands. Aquaculture companies have taken measures to reduce 
the removals of grey seals to accomplish international accreditation 
for the farms, and in the past three to four years the number of grey 
seals removed from aquaculture farms was significantly reduced. The 
Ministry of Foreign Affairs and Trade will inform the United States 
once its seal management laws come into force.
    Response: According to the MMPA import rule, to continue exporting 
fish and fish products to the United States,

[[Page 11715]]

the Faroe Islands must adopt regulations to reduce incidental marine 
mammal bycatch and prohibit intentional mortality and serious injury at 
aquaculture facilities or demonstrate that it has procedures to 
reliably certify that exports of fish and fish products to the United 
States are not the product of a commercial fishing operation that 
permits the intentional killing or serious injury of a marine mammal 
unless the intentional mortality or serious injury of a marine mammal 
is imminently necessary in self-defense or to save the life of a person 
in immediate danger. NMFS looks forward to receiving information on 
such regulations related to seal management at Faroese aquaculture 
operations; however, since the Faroe Islands currently permits the 
lethal removal of seals, Atlantic salmon aquaculture operations will 
remain an export fishery.
France
    Based on the information France provided through the European 
Union, NMFS removed swordfish from the purse seine tuna fishery in 
Indian Ocean Tuna Commission (IOTC) convention area and added a 
separate swordfish longline fishery in IOTC. NMFS added as an ``export 
fishery with no information'' an Acoupa Rouge (e.g., croaker) 
(Cynoscion acoupa) fishery operating in the Guyana EEZ, because 
information about this fishery lacked detail including the absence of 
marine mammal bycatch information.
    Although France provided fisheries information indicating marine 
mammal interactions as ``zero interactions reported'' for select 
fisheries, France failed to provide summaries of vessel logbooks or 
observer reports to substantiate this estimate. NMFS therefore did not 
reclassify these fisheries and recorded the information as ``no 
information.''
Germany
    Based on the information Germany provided through the European 
Union, NMFS combined multispecies fisheries based on gear type and area 
of operation. NMFS updated gear types for fisheries to correctly 
classify Germany's fisheries.
Greece
    Based on the information Greece provided through the European 
Union, NMFS combined multispecies fisheries based on gear type and area 
of operation. Under ``export fisheries with no information,'' NMFS 
removed crab from the LOFF as this product is inconsistently exported 
to the United States and is likely a re-export from Greece. The mullet 
indicated in the U.S. trade database is exclusively roe so NMFS 
combined this product with caviar.
Greenland
    Based on Greenland's information, NMFS deleted the following export 
fisheries: Atlantic salmon gillnet, Atlantic salmon open boat, and 
redfish trawl fisheries. The operational areas for the halibut trawl, 
longline, and gillnet fisheries have been combined into one fishery as 
have the cod poundnet, longline, and gillnet fishery (see response to 
Greenland comment 1). The shrimp trawl fishery was reclassified from 
export to exempt (see response to Greenland comment 1).
    Greenland Comment 1: Greenland maintains that only 8 fisheries 
produce fish and fish products for export to the United States, yet the 
draft LOFF contains 32 Greenlandic fisheries. Greenland further 
maintains none of the eight fisheries should be classified as export as 
there are no or few encounters with marine mammals.
    Response: As noted in the LOFF, NMFS developed the draft LOFF based 
on information provided by Greenland. Based on Greenland's comments, it 
is inappropriate for NMFS to split gear types into small and separate 
areas of operations as doing so results in more export fisheries being 
designated than operate in Greenland waters. NMFS therefore combined 
the areas of operation for the Greenland halibut trawl, gillnet, and 
longline fisheries, and the cod poundnet, longline, and gillnet 
fisheries. Further, NMFS reclassified the shrimp trawl fishery as 
exempt because of the remote likelihood of incidental mortality and 
serious injury of marine mammals and the lack of co-occurrence of 
marine mammals with this fishery. NMFS did not reclassify any other 
fishery. NMFS recognizes that there may still be uncertainty around the 
registration of marine mammal bycatch in its fisheries and that data 
from its 2016 regulatory requirement making it compulsory for the 
fishermen and buyers to report all catches, including by-catches, is 
still being evaluated. NMFS encourages Greenland to evaluate its 
bycatch data under its new regulatory regime, consider placing 
observers on its larger trawl vessels, and revise its analysis of 
marine mammal bycatch in its fisheries because such analysis may 
identify pot and gillnet fisheries as priority fisheries for bycatch 
mitigation.
    Greenland Comment 2: Since 1998, Greenland, through the North 
Atlantic Salmon Conservation Organization, committed to ban commercial 
fishing and export of salmon. Greenland carries out a permitted, 
internal subsistence salmon fishery. Greenland maintains Atlantic 
salmon is not an export species and should not appear on the LOFF.
    Response: NMFS agrees, and the U.S. trade database has no record of 
salmon imports dating back to 2000. NMFS removed these fisheries. 
Likewise, the U.S. trade database has no records of redfish exports to 
the United States, dating back to 2000. NMFS removed from the LOFF the 
redfish trawl fishery.
    Greenland Comment 3: Greenland believed that the LOFF would only 
describe foreign fisheries that produce fish or fish products exported 
to the United States. However, Greenland's understanding now is the 
LOFF includes all fisheries with the potential for export to the United 
States (e.g., now and in the future).
    Response: Greenland's current understanding is correct; but NMFS 
urges nations to err on the side of including all fisheries which may 
now, or in the future, export to the United States. By including all 
such fisheries, nations will have ample time to develop the monitoring 
or regulatory programs required for comparability findings for these 
fisheries. Delaying such action until exports begin will give these 
fisheries less time to comply (see 50 CFR 216.24 (h)(8)(vi)).
Guatemala
    Guatemala Comment 1: Guatemala challenged the information for the 
snapper, grouper, shark longline fishery, stating the information in 
the 2011 report is dated and there are no interactions with or capture 
of marine mammals in their fisheries. Guatemala also referenced its 
understanding that the affirmative finding process under the MMPA 
provides it with its current authorization to export to the United 
States.
    Response: In the absence of evidence to substantiate the claim that 
its fisheries do not interact with or capture marine mammals, NMFS did 
not reclassify any Guatemalan fisheries. With regard to the affirmative 
finding, this finding is only applicable to tuna captured in the 
eastern tropical Pacific Ocean by purse seine vessels. Specifically, 
dolphin (family Delphinidae) incidental mortality and serious injury in 
eastern tropical Pacific yellowfin tuna purse seine fisheries are 
covered by section 101(a)(2)(B) and Title III of the MMPA (16 U.S.C. 
1371(a)(2)(B) and 16 U.S.C. 1411-1417), implemented at 50 CFR 
216.24(a)-(g). Nations must still comply with those provisions and 
receive an affirmative finding to export tuna to the United States. 
Tuna purse

[[Page 11716]]

seine fishing vessels fishing for tuna with a carrying capacity of 400 
short tons or greater that are governed by the AIDCP are not included 
in the LOFF and are not required to apply for and receive a 
comparability finding. Purse seine vessels under 400 short tons and 
vessels using all other gear types operating in the eastern tropical 
Pacific must comply with the MMPA import rule. All other fisheries 
operating within the nation's EEZ or in any other ocean and exporting 
fish and fish products to the United States must be included in the 
LOFF and must apply for and receive a comparability finding.
Iceland
    Based on information provided by Iceland, NMFS reclassified as 
exempt: Multispecies finfish and shellfish dredge and fishing rod 
fisheries, and seaweed and sea cucumber fisheries based on their gear 
analogy to U.S. fisheries and the remote likelihood of marine mammal 
bycatch. Iceland provided area(s) of operation for each gear type, the 
list of target species landed by each gear type, and the marine mammal 
interactions associated with each gear type. NMFS updated the LOFF to 
consolidate target fisheries based on gear type and area of operation 
and their associated marine mammal interactions accordingly.
    NMFS moved salmon and trout aquaculture from ``export fisheries 
with no information'' to ``export fishery'' based on Iceland's lack of 
a legal requirement for documenting marine mammal interactions and lack 
of provisions outlawing intentional mortality or injury to marine 
mammals that interact with aquaculture facilities. NMFS also removed 
from the list of export fisheries with no information, the ``other gear 
types'' fishery as Iceland accounted for additional fisheries, 
specifically different types of seines and specific species gillnet 
fisheries. NMFS moved the Arctic char aquaculture fishery to the list 
of fisheries to which the ``rule does not apply'' since this fish is 
solely produced by inland aquaculture farms.
    Upon further analysis of U.S. trade data, NMFS removed the rock 
lobster fishery as this product was only exported to the United States 
once in the preceding seven years in low quantities and is likely a 
reporting error as the United States typically imports only Norwegian 
and Homarus spp. lobster.
    Iceland Comment 1: Iceland utilizes an individual catch share quota 
system. Individual landings of species can be traced back to the gear 
type that caught that species but a single gear type will target and 
catch many different commercial species, all of which are landed and 
sold. Because of this system, Iceland stated it is difficult to reduce 
a single species to a single gear type as all gear types are 
multispecies fisheries. Iceland further noted that its Marine and 
Freshwater Institute assesses bycatches of marine mammals in Icelandic 
fisheries by fishing gear, a report of which has been provided to 
NAMMCO.
    Response: NMFS acknowledges that Iceland's multispecies fisheries 
do not easily fit the ``target species'' column of the LOFF. In 
consultation with Iceland, NMFS updated the target species for each 
gear type to indicate the multispecies nature of these finfish 
fisheries.
    Iceland Comment 2: Iceland provided number of vessels associated 
with landings of species by gear type but noted that the sum total of 
the vessels in the list is much higher than the total number of vessels 
in the Icelandic fishing fleet as some vessels change gear during the 
year and some vessels fish in multiple fishing areas.
    Response: NMFS notes that Iceland's total fishing fleet is less 
than 1,700 vessels and that a single vessel can fish multiple gear 
types in multiple areas during the course of the year. As such, NMFS 
has listed ``vessel numbers'' for Iceland's fisheries as ``not 
applicable'' noting this frequency of gear change, with the exception 
of one registered vessel fishing for bluefin tuna in Iceland's EEZ and 
the ICCAT Convention Area and one mussel aquaculture farm.
India
    Based on the information India provided, NMFS updated vessel 
numbers, area of operation, bycatch species and estimates. NMFS added a 
multi-species handline fishery to the exempt fisheries category.
    India Comment 1: India collected and analyzed records of marine 
mammal entanglement in fishing gears from 1950 to 2015. Gillnets are 
responsible for 98.8 percent of marine mammal mortalities. Occasional 
reports of marine mammal bycatch in trawl, purse seine, shore seine and 
longline also exist. India provided marine mammal bycatch estimates by 
state and gear type and requested that most of their export fisheries 
be reclassified as exempt given the low rate of interaction and 
bycatch.
    Response: NMFS appreciates India's submission; however, NMFS could 
not reclassify any of India's export fisheries because: (1) Much of the 
data dates to the 1970s and 1980s; (2) it is unclear whether the 
estimates are for one year or the entire period listed in India's 
submission; and (3) it is unclear whether the numbers provided in 
India's table are unextrapolated counts from vessels or observer 
reports or extrapolated bycatch estimates for the entire fishery. 
Without such clarifications, NMFS cannot evaluate whether the 
likelihood of marine mammal bycatch in these fisheries is remote.
Indonesia
    Indonesia Comment 1: Indonesia stated that shark is not a target 
species exported to the United States; therefore, Indonesia suggested 
removing shark from the LOFF. Indonesia also noted that swordfish is 
not a target species, but a bycatch species during tuna fishing.
    Response: Since 2000, Indonesia has consistently exported shark, 
shark fins, and swordfish to the United States. Whether a species is 
targeted or bycaught is inconsequential; what matters is whether it is 
exported to the United States. Indonesia should identify the fisheries 
in which these species are taken to ensure that those fisheries are 
accurately identified and described in the LOFF. All exports to the 
United States must be included in the LOFF. NMFS made no change to 
these fisheries.
    Indonesia Comment 2: Indonesia noted that all cetacean species are 
included in the Convention on International Trade of Endangered Species 
of Flora and Fauna (CITES), which prevents the trade of such species or 
any of their parts. Indonesia has a National Plan for Marine Mammal 
Protection and has designated two marine mammal protection areas 
(Lovina and Savu Sea). Additional national laws and regulations govern 
the tuna fishing industry and marine mammal protection. Based on this 
information, Indonesia requested that NMFS reclassify its export 
fisheries as exempt fisheries.
    Response: Indonesia's information does not provide evidence that 
the frequency of marine mammal bycatch in its fisheries currently 
listed as export is less than remote. In fact, available reports 
indicate that marine mammal bycatch may exist in both tuna purse seine 
and longline fisheries. Additionally, there are still seven fisheries 
classified as export fisheries because Indonesia has not provided the 
information necessary to classify these fisheries. NMFS recommends that 
Indonesia develop and implement a consistent marine mammal bycatch 
monitoring scheme, especially for its tuna fisheries, and fully 
implement the

[[Page 11717]]

conservation and management measures of the IOTC and the Western and 
Central Pacific Fisheries Commission (WCPFC), which prohibit the 
intentional encirclement of cetaceans with purse seine nets.
Ireland
    Upon further analysis of U.S. trade data, NMFS combined the 
fisheries for hake and lobster into the multispecies gillnet fishery 
for pollock, lobster and hake. NMFS removed the fisheries for tuna and 
turbot as Ireland has not exported either of these species to the 
United States during the preceding seven years. Under the category of 
export fisheries with no information, NMFS removed rock lobster as this 
species is included in the export multispecies fishery for pollock, 
lobster, and hake. Also under this category, NMFS removed salmon as it 
is included in the driftnet fishery operating in Ireland's EEZ. NMFS 
also removed the gillnet fishery operating in the northeast Atlantic 
with no specified target fishery as this fishery and its associated 
bycatch are included in the export fisheries for crawfish and lobster.
Italy
    Based on Italy's information submitted by the European Union, NMFS 
updated vessel numbers; changed the gear type for the anchovy, 
pilchard, and sardine fishery from ``seine'' to ``purse seine''; and 
removed the swordfish driftnet fishery from the LOFF based on national 
legislation and EU regulation banning the use of largescale driftnets.
    NMFS also reclassified the clam, mussel, mollusk dredge fishery 
from export to exempt based on analogous gear from other dredge 
fisheries without marine mammal bycatch and the coastal operational 
area of the fishery. NMFS noted in the ``detailed information'' that 
the swordfish longline fishery appears to be operating in accordance 
with the National Observer Program under ICCAT.
    Italy noted that most of its seabream and seabass products are from 
aquaculture; however, Italy did not provide the area of operation for 
these aquaculture facilities or details on how these species are 
cultured. Italy previously declared a fishery for seabass and sea bream 
with a gear type of ``small-scale fisheries.'' This fishery is lacking 
information on the specific gear types involved in fishing these 
species.
    Italy Comment 1: Italy noted that their prior submission to the 
draft LOFF provided information indicating marine mammal interactions 
as ``zero'' for select fisheries and asked why this information was not 
reflected in the LOFF.
    Response: Italy did not provide any information such as vessel 
logbooks, or observer reports to substantiate the bycatch estimates of 
zero; therefore, no changes were made to the fishery classifications.
Jamaica
    Jamaica Comment 1: The Jamaican wild marine penaeid shrimp fishery 
is a small-scale fishery for local consumption. In the past, exports of 
marine shrimp were produced by inland aquaculture facilities. Recent 
and current marine shrimp exports are all re-exports. Future marine 
shrimp production will be through aquaculture. All current ornamental 
fish production is produced through freshwater culture. Current 
Jamaican policies discourage wild caught marine ornamental fish 
fisheries. Notwithstanding, sustainable wild caught marine ornamental 
fish fisheries may be considered in the future.
    Response: Based on the information provided, NMFS removed the 
marine Penaeid shrimp fishery and the ornamental fish fishery from the 
LOFF.
    Jamaica Comment 2: Jamaica is actively pursuing the development of 
the following fisheries: (a) Artisanal and semi-industrial pelagic 
longline fisheries; (b) marine crab trap fishery; and (c) freshwater 
aquaculture of Pangasius spp., Carps, and Collasoma spp. Jamaica is 
developing a comprehensive management plan for its pelagic fishery. 
Jamaica envisions these plans and their related legislation will 
include provisions to ensure minimal interaction with or minimal 
mortality or injury of marine mammals.
    Response: NMFS will revise the LOFF in 2020. At that time, NMFS 
encourages Jamaica to provide detailed information about these 
fisheries, including all marine mammal bycatch estimates. NMFS 
encourages Jamaica to include provisions to monitor and evaluate the 
marine mammal bycatch in these fisheries. Additionally, if Jamaica 
resumes its ornamental fish fisheries, it must provide information so 
NMFS can classify the fishery and, if determined to be either an exempt 
or export fishery, apply for a comparability finding.
Japan
    Based on Japan's revised information, NMFS updated target species, 
gear type, vessel number, area of operation, marine mammal 
interactions, marine mammal bycatch estimates, and comments for all 
Japan's commercial fisheries. NMFS compared bycatch and interaction 
estimates provided by Japan with IWC reported interactions where 
possible to reconcile differences. As described in the Federal Register 
Notice publication of the draft LOFF (82 FR 39762; August 22, 2017), 
NMFS designated all gillnet, longline, non-tuna purse seine, fish pots 
and trap fisheries not operating in the Caribbean region, and trawl 
fisheries as export fisheries. NMFS retained the export classification 
for these fisheries in Japan's LOFF with the rationale of A/G 
(analogous gear) and N/I (no information). In order to reclassify these 
fisheries as exempt, NMFS looks to Japan to provide sufficient 
documentation to justify re-classification. Sufficient documentation 
includes: Summary information from logbooks or other fisher reports, 
observer records or programs, recent strandings data, and details on 
the species and distribution of marine mammals in the area where 
fishing operations are occurring.
Latvia
    Based on Latvia's information provided by the European Union, NMFS 
updated: The target species in the multispecies trapnet fisheries; 
fishing season for all fisheries; and marine mammal presence and 
interactions for fisheries to indicate harbor porpoise presence but no 
recorded interactions.
Lithuania
    NMFS updated fishing season for all fisheries based on Lithuania's 
information provided by the European Union.
Madagascar
    Based on the information provided by Madagascar, NMFS updated the 
numbers of vessels participating in the export tuna and shrimp 
fisheries. NMFS also added company names for seaweed and shrimp 
aquaculture operations.
    In analyzing the U.S. trade data for Madagascar, NMFS removed the 
fisheries for molluscs from ``export fisheries with no information'' as 
this product was imported only three times in the past 17 years, in 
2001, 2002, and 2004, and in small quantities. NMFS also removed the 
fisheries for marine fish and grouper, as these products were imported 
only once in the past 17 years, in 2016, and again in small quantities.
Malta
    Upon further analysis of U.S. trade data, NMFS removed the 
swordfish fishery as Malta has not exported this species to the United 
States at any point in the preceding seven years. NMFS updated fishing 
seasons for all fisheries.

[[Page 11718]]

Mauritius
    Based on the information Mauritius provided, NMFS added a pelagic 
swordfish, tuna (albacore, yellowfin, bigeye, billfishes, shortfin mako 
shark) vertical longline fishery. NMFS removed the swordfish, tuna 
(albacore, yellowfin, bigeye, billfishes, shortfin mako and shark) mid-
water trawl fishery because, according to Mauritius, these species are 
fished using surface longline and purse seines rather than trawl gear.
    Mauritius Comment 1: Mauritius clarified that for most pelagic 
species (swordfish, tuna albacore, yellowfin, bigeye, billfishes and 
some shark species), the gears used are vertical longline (artisanal 
fishermen), surface longline (semi-industrial longliners) and purse 
seines. Mauritius claims in these fisheries there are chance encounters 
with marine mammals. Mauritius further noted at present there are 
approximately 350 artisanal fishers that fish for pelagic species on 
Fish Aggregating Devices (FADs) placed around the island of Mauritius. 
The semi-industrial longline fleet consists of eight vessels targeting 
pelagic species.
    Response: NMFS notes Mauritius's comments but, without observer or 
logbook information substantiating its claim that marine mammal 
encounters are ``chance'' in longline and purse seine gears, NMFS 
cannot reclassify these fisheries.
Mexico
    Based on information provided by Mexico, NMFS updated gear type, 
vessel numbers, areas of operation, marine mammal interactions, and 
comments for select fisheries. NMFS reclassified from export to exempt 
the red snapper and grouper longline fisheries operating in the Gulf of 
Mexico because they are analogous to the U.S. Category III Southeastern 
U.S. Atlantic, Gulf of Mexico, and Caribbean snapper-grouper and other 
reef fish bottom longline/hook-and-line fisheries. Similarly, NMFS 
reclassified, from export to exempt, the shark longline fishery 
operating in the Gulf of Mexico because it is analogous to the U.S. 
Category III Southeastern U.S. Atlantic, Gulf of Mexico shark bottom 
longline/hook-and-line fishery. NMFS also reclassified the lobster trap 
fishery operating in the Gulf of Mexico because it is analogous to the 
U.S. Category III Caribbean mixed species and lobster trap/pot 
fisheries and has no documented marine mammal interactions.
    Based on Mexico's submission, NMFS added to export fisheries, the 
trap, longline, and gillnet fisheries for sole, white corvina, and 
verdillo operating on the west coast of the Baja California Peninsula. 
NMFS also removed the red snapper gillnet fishery as there is no 
authorized gillnet fishing for snapper in the Gulf of Mexico. NMFS 
added herring to the sardine/mackerel purse seine and gillnet fisheries 
operating on the west coast of the Baja California Peninsula. Finally, 
NMFS changed the Gulf of California lobster fishery gear type from 
tangle net to trap.
    Based on Mexico's information, NMFS added a cobia hand line fishery 
and a conch diving fishery to exempt fisheries.
    Based on Mexico's submission and further analysis of U.S. trade 
data, in the category ``export fisheries with no information,'' NMFS 
removed the fishery for lobster (Homarus spp.) as this was likely a 
reporting error. Lobsters received from Mexico are rock/spiny lobster 
and would likely not be North Atlantic lobster species. NMFS also 
removed the silverside (pike, blacknose, longjaw, bigmouth, shortfin) 
fishery since the United States has not imported products from this 
fishery for over seven years. NMFS removed the eel fishery because this 
is a freshwater species that does not occur in marine mammal habitat 
and has no marine mammal interactions so the MMPA import rule does not 
apply.
    Based on Mexico's submission and NMFS's further review, NMFS 
removed the Gulf weakfish/corvina trawl fishery because there is no 
authorized trawl fishery in the Upper Gulf of California. NMFS notes, 
however, if Mexico develops a finfish trawl fishery in the Upper Gulf 
of California, Mexico must provide the information necessary to 
classify the fishery and, if an export fishery, apply for a 
comparability finding.
    Mexico Comment 1: Mexico maintains there are no longline fishing 
permits granted for tunas (yellowfin, bluefin, skipjack, others) in the 
IATTC Convention Area. Mexico further notes that pursuant to the 
National Fisheries Charter 2012 tuna catches are not allowed to be 
caught using gillnets.
    Response: The IATTC vessel register lists 159 longline vessels and 
1 gillnet vessel under the Mexican flag. While Mexico may not be 
currently longline or gillnet fishing for tuna in the IATTC Convention 
Area, NMFS retained these fisheries as export given the number of 
vessels registered in IATTC.
    Mexico Comment 2: Mexico claims its lobster, octopus, and squid 
trap/pot fisheries are highly selective fishing gear types and as such 
should be classified as exempt.
    Response: While NMFS reclassified as exempt the lobster trap 
fishery in the Gulf of Mexico because it is analogous to the U.S. 
Category III Caribbean mixed species and lobster trap/pot fisheries, 
trap/pot fisheries for lobster, octopus, or squid operating in all 
other areas (other than the Gulf of Mexico), have no analogous U.S. 
fishery nor can they demonstrate no interaction. In the lower Gulf of 
California and west coast of Mexico, marine mammals, such as large 
whales using and migrating through the area, can become entangled in 
trap/pot buoy (vertical) lines and groundlines (lines between traps). 
Mexico provided no evidence that the likelihood of marine mammal 
bycatch in octopus, lobster traps/pots is remote; therefore, NMFS 
retained the export classification for these fisheries.
    Mexico Comment 3: Mexico noted that there are no gillnet fisheries 
for shrimp and finfish in the upper Gulf of California because of its 
permanent ban on gillnet fishing. Further, Mexico maintains that the 
gillnets used as ``encircling nets'' in the corvina fishery in the 
upper Gulf of California are selective and have no evidence of vaquita 
interaction.
    Response: NMFS applauds Mexico's announcement of the gillnet ban in 
the upper Gulf of California. Although this ban affects several 
historically gillnet-fished species in the area (including gulf 
weakfish/corvina, sardines, mackerel, herring, shark, shrimp and other 
finfish), NMFS retained these fisheries as export because of evidence 
of continued illegal fishing and vaquita mortality. NMFS believes it is 
important that Mexico report on the implementation and enforcement of 
its gillnet ban. Further, NMFS still maintains that the gillnet 
exemptions for corvina and sierra are unwarranted. Scientific data run 
contrary to Mexico's assertion that corvina and sierra fisheries do not 
interact with vaquita, specifically the sierra fishery has observed 
vaquita bycatch (D'agrosa et. al., 2000). NMFS has retained the export 
classification for the corvina and sierra gillnet fisheries. Finally, 
Mexico must provide information on any new gear types that it 
authorizes to fish in the upper Gulf of California for shrimp and 
finfish so these fisheries can be classified and receive a 
comparability finding.
    Mexico Comment 4: Mexico included AIDCP tuna vessels in their 
submission for the LOFF.
    Response: Mexico is a party to the AIDCP. NMFS refers Mexico to the 
above section titled ``The Intersection of the LOFF and Other Statutes 
Certifying Bycatch,'' noting that AIDCP tunas

[[Page 11719]]

under this category are exempted from this rule.
Morocco
    Based on Morocco's information, NMFS updated gear type, vessel 
numbers, areas of operation, and comments for select fisheries. NMFS 
also combined the sardine, anchovy, and mackerel fisheries based on 
gear type, to indicate a trawl fishery and a purse seine fishery. NMFS 
also separated tuna and swordfish fisheries to more accurately 
characterize gear type, area of operation, and vessel numbers. Whereas 
previously NMFS had combined tuna and swordfish into the same fishery 
under each gear type, Morocco provided additional detail meriting 
splitting into hook and line, trap, and purse seine fisheries for tuna, 
and hook and line and longline fisheries for swordfish. NMFS removed 
the octopus pot fishery because this gear type is not used to catch 
octopus in Morocco. Finally, NMFS added hand collection and diving 
seaweed fisheries to exempt fisheries.
    Morocco Comment 1: Morocco submitted information on marine mammal 
stranding monitoring efforts; two projects to assess interactions 
between cetaceans and fishing activities in the Mediterranean and 
Strait of Gibraltar; and its participation in the Agreement on the 
Conservation of Cetaceans in the Black Sea, Mediterranean Sea and 
contiguous Atlantic area (ACCOBAMS) Survey Initiative.
    Response: NMFS applauds these efforts and looks forward to the 
findings; however, Morocco did not offer the detail necessary for NMFS 
to evaluate the frequency of marine mammal bycatch to reclassify 
Morocco's fisheries. NMFS encourages Morocco to develop a marine mammal 
bycatch monitoring program so, in the future, Morocco may provide 
detailed marine mammal bycatch estimates for its fisheries.
    Morocco Comment 2: Morocco noted that fishermen sever the fins of 
incidentally caught dolphins to facilitate removal of the marine mammal 
from the net.
    Response: NMFS does not condone this practice; severing the fins of 
incidentally caught dolphins to facilitate their removal from the net 
would be considered a serious injury and would be counted against the 
bycatch limit for that species. This practice could also be considered 
an intentional injury of the dolphin and could possibly jeopardize the 
issuance of a comparability finding for that fishery. NMFS urges 
Morocco to develop safe handling and release guidelines or requirements 
that prohibit the intentional severing of fins to release a marine 
mammal from a net entanglement.
Netherlands
    Based on the Netherland's information submitted by the European 
Union, NMFS updated fisheries to indicate where there is marine mammal 
co-occurrence, and the fishing season for all fisheries. NMFS also 
removed the sinking gillnet fishery with no specific target species 
because this is a recreational fishery that does not export product to 
the United States (see https://www.ices.dk/sites/pub/Publication%20Reports/Advice/2016/2016/Protected_species_bycatch.pdf).
New Zealand
    Based on the information New Zealand provided, NMFS removed the 
hake (hoki, ling, white warehou) bottom longline fishery from the LOFF 
as it does not exist; hake is taken almost entirely by trawl. NMFS also 
removed shark fins (all gear types) from the LOFF as fins are a product 
of sharks captured in the spotted dogfish (rig), mixed inshore trawl 
fisheries, and surface longline fisheries for tuna, not a separate 
target fishery.
    New Zealand Comment 1: New Zealand is currently finalizing models 
that use a PBR-like approach to quantify the extent of fisheries 
interactions with marine mammals, and the subsequent impacts to marine 
mammal populations. New Zealand anticipates finalizing this work within 
the next two years and will use this information to support its 
application for a comparability finding. Following completion of this 
work, New Zealand plans to apply for a comparability finding in 2019 or 
2020.
    Response: While the regulations do not require nations to apply for 
a comparability finding until March 2021, NMFS will accept and evaluate 
comparability finding applications submitted prior to the application 
deadline.
    New Zealand Comment 2: New Zealand asked if it would be acceptable 
under the MMPA Import Rule to aggregate all New Zealand fisheries into 
a single assessment, including those not currently exporting to the 
United States. The proposed aggregated approach would estimate total 
marine mammal interactions across all fisheries within New Zealand's 
EEZ (species/gear types/areas) and compare those to an estimate of 
fishing-related mortalities that each marine mammal population can 
sustain without significantly impacting the population. New Zealand 
believes this approach, instead of considering each fishery in 
isolation, would account for all fishing-related mortalities on a given 
marine mammal population. This approach would also reduce the need for 
future comparability finding applications if it is demonstrated that 
bycatch is below sustainable levels for all fisheries. New Zealand 
noted that if it cannot aggregate all New Zealand fisheries into one 
assessment, it will need to reconsider the current fishery groupings, 
and its modelling approach, to ensure that model outputs and the 
fisheries listed are consistent and accurately reflect a `fishery' from 
an operational perspective.
    Response: The MMPA Import Rule requires a nation to submit an 
application for each export fishery. That said, the MMPA Import Rule 
also requires that for those fisheries, a nation undertake a comparison 
of the incidental mortality and serious injury of each marine mammal 
stock or stocks that interact with the export fishery in relation to 
the bycatch limit for each stock; and comparison of the cumulative 
incidental mortality and serious injury of each marine mammal stock or 
stocks that interact with the export fishery and any other export 
fisheries of the harvesting nation showing that these export fisheries: 
(i) Do not exceed the bycatch limit for that stock or stocks; or (ii) 
exceed the bycatch limit for that stock or stocks, but the portion of 
incidental marine mammal mortality or serious injury for which the 
export fishery is responsible is at a level that, if the other export 
fisheries interacting with the same marine mammal stock or stocks were 
at the same level, would not result in cumulative incidental mortality 
and serious injury in excess of the bycatch limit for that stock or 
stocks (see 50 CFR 216.24(h)(6)(iii)(C)(6)). While this may not be the 
same aggregation New Zealand envisions, it does require that all marine 
mammal mortality and serious injury across all gear types be evaluated 
against the bycatch limit for that marine mammal population. The impact 
of all fisheries and each fishery interacting with a marine mammal 
population is evaluated against the bycatch limit for that marine 
mammal stock, allowing for the greatest flexibility and likelihood of 
issuing a comparability finding, especially for those fisheries with 
little bycatch.
    New Zealand Comment 3: New Zealand requested information about how 
often the LOFF will be reviewed or updated.
    Response: In 2020, the year prior to the expiration of the 
exemption period, NMFS will re-evaluate foreign commercial fishing 
operations and

[[Page 11720]]

publish a notice of availability in the Federal Register of the draft 
LOFF for public comment, followed by notice of availability of the 
final revised LOFF in the Federal Register. NMFS will revise the final 
LOFF, as appropriate, and publish a notice of availability in the 
Federal Register and update the LOFF every four years thereafter.
Norway
    Based on the information Norway provided, NMFS reclassified the 
Norwegian krill fishery as exempt.
    The largest population of fur seals is on the island of South 
Georgia, which supports about 95 percent of all Antarctic fur seals 
(IUCN 2008). In 1999/2000, when the last survey occurred, the total 
population was estimated between 4.5 and 6.2 million seals, and is 
believed to have increased by 6 percent--14 percent since the 1990/1991 
season (IUCN 2008). In 2004, all populations of fur seals are believed 
to be either increasing or stable (SCAR EGS 2004). Assessments of fur 
seal population size in Area 48, where the krill fishery occurs, are 
not currently available. Mortalities of fur seals in the krill fishery 
have declined over time, but were sometimes substantial before the 
mandatory deployment of seal exclusion devices. In 2005, CCAMLR 
implemented rules requiring the use of seal exclusion devices by each 
vessel. Between 2008 and 2014, no fur seal mortalities were reported, 
only two were reported in 2015. Using a minimum stock size which 
includes a 30 percent reduction in the overall stock size from the last 
available estimate, the stock is estimated at 2.94 million individuals. 
A recovery factor of 0.5 results in a PBR of 88,200 individuals. Based 
on these calculations and the bycatch mitigation requirements the krill 
fishery has a remote likelihood of having bycatch levels in excess of 
10 percent of the PBR-level. Based on these calculations NMFS 
reclassified this krill fishery as an exempt fishery.
    Based on information Norway submitted to ICCAT, from 2014 through 
2017 there was no reported or observed bycatch of marine mammals in the 
tuna longline/purse seine fisheries. Therefore, NMFS reclassified the 
Norwegian longline and purse seine tuna fisheries as exempt.
    NMFS also reclassified the demersal fish (cod, haddock, angler 
fish, and tuna, saithe Danish seine fishery as exempt as this gear type 
has a remote likelihood of marine mammal bycatch.
    Norway Comment 1: Norway requested that longline, trawl, and purse 
seine fisheries be reclassified as exempt. Fisheries conducted with 
longline, and trawl are mainly for demersal fish. Purse seine fisheries 
are mainly for pelagic fish, such as herring, capelin, tuna and saithe. 
Norway has no reported or observed marine mammal bycatch in these 
fisheries, in logbooks, by observers, in landing reports, or in other 
sources of information (detailed information about Norwegian observer 
programs is provided in a report to the North Atlantic Marine Mammals 
Commission (NAMCCO), ``Observed and Reported Bycatches of Marine 
Mammals in the Norwegian Shelf and Offshore Fisheries'' (NAMMCO/15/MC/
BC/7). Norway asserted that because there is no information on marine 
mammal bycatch in these fisheries, they have a remote likelihood of 
marine mammal bycatch in excess of ten percent of PBR level.
    Response: Norway has only observed this fishery once in 2005 and 
lacks more recent observer data for these fisheries. We understand that 
Norway intends to resume its observer program in 2018; and NMFS looks 
forward to Norway submitting the revised observer data and bycatch 
estimates when the LOFF is revised in 2020. NMFS uses more recent 
bycatch estimates taken over a series of several years. Absent more 
recent observer information, NMFS lacks justification for reclassifying 
the trawl, longline, and purse seine fisheries from export to exempt 
fisheries.
    Norway Comment 2: Norway noted that ``Co-occurrence Evaluation'' 
and an ``Analogous Gear Evaluation'' do not include information on 
biology, spatial distribution, marine mammal abundance and other 
factors critical to assess whether marine mammal bycatch occurs in a 
fishery. Norway also stated NMFS should not assume that a marine mammal 
caught by a trawl fishery in one geographical area will automatically 
be caught using the same gear in another geographical area.
    Response: In the draft LOFF Federal Register notice, NMFS published 
the scientific basis for its co-occurrence evaluation. This evaluation 
is based on the best available scientific information, and absent 
information documenting the presence or absence of marine mammal 
bycatch, NMFS will use this and other available scientific information 
for its evaluations. Likewise, absent documented information on bycatch 
or co-occurrence, NMFS believes use of analogous gear is a legitimate 
rationale for classifying fisheries. In some instances, NMFS classifies 
its domestic fisheries based on analogous gear types.
    Norway Comment 3: Norway noted that the definition of an ``export 
fishery'' includes fisheries having marine mammal bycatch in excess of 
10 percent of PBR for that marine mammal stock and that bycatches in 
such fishery must be reduced to obtain a comparability finding. Norway 
cannot understand the basis for this threshold. Further, Norway stated 
that if they accepted as a premise that fish import into the United 
States must be harvested in a sustainable manner for bycatch species 
such as marine mammals, to equate this to not exceeding the level of 
PBR, a ten-fold ``extra insurance,'' seems without any scientific and 
biological justification.
    Response: NMFS disagrees; the MMPA import rule is based on sound 
science and follows the same standards as the U.S. regulatory program 
for its fisheries. Exempt fisheries are equivalent to Category III 
fisheries in the U.S. regulatory program because the impact of these 
fisheries on marine mammals is negligible and the likelihood of bycatch 
is remote. Export fisheries are functionally equivalent to Category I 
or II fisheries under the U.S. regulatory program (see definitions at 
50 CFR 229.2). Fisheries that NMFS determines have more than a remote 
likelihood of incidental mortality and serious injury of marine 
mammals, or for which there is a lack of reliable information that they 
have no or a remote likelihood of incidental mortality and serious 
injury to marine mammals, will be classified as export fisheries. 
Because the United States focuses its incidental mortality and serious 
injury assessment efforts and regulatory requirements on Category I and 
II fisheries (which are domestic fisheries where the likelihood of 
incidental mortality and serious injury is more than remote), NMFS has 
adopted the same approach in the MMPA import rule for export fisheries 
(see https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-protection-act-list-fisheries).
Oman
    Oman's fisheries remain unchanged. While Oman submitted 
information, the submission lacked the detail necessary for NMFS to 
further evaluate the frequency of marine mammal bycatch or reclassify 
Oman's fisheries. NMFS notes that Oman prohibits the catch of whales or 
marine mammals and in 2014 and 2015 Oman conducted surveys to assess 
the status of its marine mammal stocks, the report of which will be 
provided to the International Whaling Commission. NMFS further notes 
Oman has initiated the adoption of regulations to limit the length of 
driftnets and purse seines to less than 1 kilometer (km) for artisanal 
boats and up to 2.5 km for artisanal/

[[Page 11721]]

industrial coastal fleets. NMFS encourages Oman to develop a marine 
mammal bycatch monitoring program, so it may provide more detailed 
information about marine mammal bycatch estimates in its fisheries.
Pakistan
    Based on Pakistan's information, NMFS removed the coral, shells, 
and cuttlebone fishery because it no longer exists and there have not 
been exports of these products since 2009. Per Pakistan's 
recommendations, NMFS modified the number of vessels and area of 
operation for nearly all Pakistan's fisheries. NMFS encourages Pakistan 
to further develop its marine mammal bycatch monitoring program so it 
can provide detailed information about marine mammal bycatch in its 
fisheries. NMFS also urges Pakistan to diligently look for ways to 
mitigate marine mammal bycatch in its gillnet fisheries or consider 
switching to non-entangling gear given the magnitude of the bycatch and 
the co-occurrence of marine mammals and gillnet fisheries.
Panama
    Based on Panama's information, NMFS added three export fisheries: 
Forage fish purse seine fishery in the Pacific Panamanian EEZ; shrimp 
gillnet fishery in the Pacific Panamanian EEZ; and a large pelagics 
surface longline fishery outside the Panamanian EEZ within the IATTC 
convention area (eastern central and southeast Pacific). In addition, 
NMFS updated target species, number of vessels, and area of operation 
for the vast majority of Panamanian fisheries. Panama did not provide 
information on the frequency of marine mammal mortality and serious 
injury in any of its export fisheries.
Philippines
    For exempt fisheries, NMFS changed the area of operation from none 
provided to coastal area/EEZ. For export fisheries, NMFS changed the 
area of operation for several export fisheries based on the 
Philippines' information. NMFS reclassified sardine, herring and squid 
bag net and scoop nets as exempt given the small size of the gear, its 
operation, and the determination that the likelihood of marine mammal 
bycatch is remote. Also, based on the Philippines' information, NMFS 
added a tuna longline fishery operating in the EEZ and international 
waters under the WCPFC, IOTC, and ICCAT.
    Philippines Comment 1: The Philippines challenged the export 
fishery classification for the blue swimming crab, noting the species 
is caught in coastal areas nationwide (including the Visayan Sea, 
Palawan, Sorsogon Bay and the Bicol area) by crab pots or traps with no 
reported or a remote possibility of marine mammal interactions.
    Response: Marine mammals can become entangled in the buoy 
(vertical) line and groundlines (lines between traps) of crab traps. 
Because the Philippines did not provide evidence that the likelihood of 
marine mammal bycatch in blue swimming crab pots is remote, NMFS could 
not reclassify the blue swimming crab pot fishery as exempt.
Poland
    Based on Poland's information submitted through the European Union, 
NMFS updated vessel number and gear type for each fishery, and marine 
mammal species where co-occurrence is present. NMFS split into 
individual target species fisheries, fisheries that NMFS had recorded 
as multispecies fisheries. NMFS reclassified from ``export fishery with 
no information'' to export, the Atlantic salmon trap, gillnet, and 
longline fisheries, and sardine pelagic trawl fisheries. Finally, upon 
further analysis of U.S. trade data, NMFS removed the fishery for tuna 
because this species has not been exported to the United States in the 
preceding four years and was inconsistently exported prior to 2014.
Portugal
    Based on Portugal's information submitted by the European Union, 
NMFS updated fishing seasons for all fisheries, and combined fisheries 
into multispecies fisheries based on gear type and area of operation.
    NMFS also changed the bluefin tuna fixed weir/trap fishery from 
``export fishery with no information'' to export fishery, because NMFS 
is uncertain whether dolphins could become entangled in the net that 
funnels tuna to the final area where they are harvested.
    Additionally, NMFS reclassified eel, crab, cuttlefish, and lobster 
trap fisheries from ``export fisheries with no information'' to export.
    Based on Portugal's information, NMFS reclassified from ``export 
fisheries with no information'' to exempt fisheries the mussel raft and 
line aquaculture fishery, the hand collection fisheries for seaweed and 
snails, the handline fishery for skipjack tuna, and the coastal 
aquaculture fishery for clams based on the highly selective nature of 
the gear types used to fish these products and the remote likelihood of 
marine mammal bycatch.
    NMFS removed from the LOFF fisheries for turbot, sea bass, and sea 
bream and placed them on list of foreign fisheries for which the rule 
does not apply as these fisheries are produced by inland aquaculture. 
Likewise, NMFS moved salmon to the intermediary nations list as this is 
a re-exported, processed product.
Seychelles
    NMFS did not reclassify any Seychelles fisheries. Based on 
Seychelles' information, NMFS removed the tuna and large pelagics trawl 
fishery from the list of export fisheries, because this fishery is no 
longer permitted. NMFS added a spanner crab pot fishery to the list of 
export fisheries because no information was provided about this 
fishery.
    Seychelles Comment 1: For the grouper, seabass, snapper set bottom 
fishing, ball bottom fishing and bottom drift fishing, Seychelles 
stated these are artisanal fisheries for mixed demersal species 
commonly found in association with reefs and banks with limited marine 
mammal interactions; therefore, these fisheries should be exempted.
    Response: NMFS did not reclassify these fisheries because the 
Seychelles did not provide detailed information about the gear type, 
how it is fished, or any evidence from logbook or observer data 
indicating the entanglement rate associated with these fisheries. 
Without additional information, NMFS cannot evaluate whether these 
fisheries have a remote likelihood of marine mammal bycatch.
    Seychelles Comment 2: Regarding the semi-industrial longline 
fishery, Seychelles stated that predation is the primary marine mammal 
interaction with this fishery. False killer whales depredate tuna and 
swordfish from the semi-industrial longliners. The Seychelles claims 
depredation occurs while the lines are set and to date there has been 
no marine mammal entanglement on semi-industrial longline gear. 
Seychelles stated it plans to include longliners in the scientific and 
compliance observer programs to monitor catches and ensure that non-
targeted species (such as turtles) are avoided.
    Response: NMFS did not reclassify this fishery as exempt. Marine 
mammal depredation on longlines poses a risk of entanglement that is 
more than remote. NMFS will revise the LOFF in 2020, and looks forward 
to receiving summaries from the Seychelles' scientific and compliance 
observer program documenting the frequency of marine mammal depredation 
and bycatch in the semi-industrial longline fishery.
    Seychelles Comment 3: Seychelles commented that the industrial 
longline

[[Page 11722]]

fishery is regulated as a purse seine fishery under the IOTC, targeting 
mainly tuna and tuna-like species. The Seychelles asserted that this 
fishery should be reclassified as exempt because the gear is selective 
and has minimal interactions with marine mammals. The fishery is 
monitored and regulated through onboard inspection of catches, vessel 
monitoring systems, and catch logbooks. The Seychelles stated marine 
mammal interactions are mitigated by utilizing circle hooks, which 
minimize the risks of accidental catches of non-targeted species 
including marine mammals.
    Response: NMFS did not reclassify this fishery as exempt. For NMFS 
to evaluate the bycatch rate in this fishery the Seychelles must 
provide information on marine mammal depredation and entanglement from 
logbooks or observer programs. Additionally, while circle hooks may be 
an effective mitigation measure for sea turtles, research has not yet 
demonstrated that they effectively reduce marine mammal bycatch. 
Without more information demonstrating that the likelihood of bycatch 
is remote, NMFS cannot reclassify this fishery as exempt.
Slovenia
    Based on Slovenia's information submitted by the European Union, 
NMFS removed seaweed and albacore from the LOFF fisheries and placed 
them on the intermediary nations list as these are re-exported, 
processed products.
    Upon further analysis of U.S. trade data, NMFS removed mullet, 
sole, hake, and whiting from the LOFF fisheries as Slovenia indicated 
that these are domestic fisheries for domestic consumption and are not 
exported to the United States. Further, the United States has not 
imported these products in the preceding seven years. Because Slovenia 
did not provide information about its mackerel fishery, which is a 
product exported to the United States, NMFS retained this fishery as an 
``export fishery with no information.''
South Korea
    Based on the information South Korea provided, NMFS consolidated 
individual fishing provinces into a broader region designation; 
consolidated fisheries into appropriate multispecies fisheries; and 
consolidated the number of vessels operating in a region. NMFS also 
updated marine mammal bycatch estimates for the individual fisheries.
    NMFS removed yellowtail, bass, octopus, and aquacultured mussel, 
and mullet from the category ``export fisheries with no information,'' 
as additional information provided by South Korea indicated that mullet 
and bass are captured in the multispecies gillnet, longline fishery, 
and set net fisheries, octopus are caught in pots and traps as well as 
in the longline fisheries, and yellowtail are caught in the 
multispecies gillnet, set net, stationary net and purse seine 
fisheries. NMFS moved aquaculture mud loach from the LOFF to the 
category of ``Rule Does Not Apply'' as this is a freshwater species.
    NMFS removed gear types of ``illegal catch,'' ``strand,'' and 
``driftnet'' from fisheries listed under the category of export 
fisheries with no information because South Korea clarified these as 
instances of marine mammal stranding events and drifting carcasses for 
which the cause of death could not be attributed to a specific fishery. 
South Korea originally listed these marine mammal interactions as 
``strand'' and ``drift,'' which NMFS incorrectly interpreted to mean 
lines and driftnets. The marine mammal deaths attributed to illegal 
catch were also removed because a specific fishery could not be 
identified as the cause of the interaction.
    Finally, South Korea provided gear information for gear types 
``bamboo weir,'' ``anchovy lift net,'' and ``mosquito net.'' NMFS 
reclassified these fisheries as exempt fisheries because NMFS review of 
the information of these practices indicated that the likelihood of 
marine mammal bycatch is remote.
    Upon further review of U.S. trade data encompassing the last 17 
years, NMFS removed haddock and hake from the category ``export 
fisheries with no information.'' Haddock have never been imported into 
the United States from South Korea, and hake was received 
intermittently and not since 2013. Additionally, NMFS removed from this 
category turbot that is caught in the multispecies stow net and 
stationary net fisheries, cusk that is caught in the multispecies trawl 
fishery, sardine that is caught in the multispecies trawl and purse 
seine fisheries, and shad which is caught in the multispecies purse 
seine, set net, and gillnet fisheries. All of these fisheries were 
reclassified as export.
Saint Helena
    Based on the information Saint Helena provided, NMFS reclassified 
from an ``export fishery with no information'' to an exempt fishery the 
Tristan rock lobster trap and hoop net fishery. The basis for this 
reclassification is this fishery has no documented marine mammal 
interaction and is analogous to the Category III Caribbean mixed 
species and lobster trap/pot fisheries.
Spain
    Based on Spain's information submitted by the European Union, NMFS 
updated fishing areas for species, particularly where no information 
had been previously provided. NMFS added longline and purse seine 
fisheries for tuna and swordfish in FAO Areas 21, 31, 61, and 67. 
Spain's purse seine fisheries for tuna in areas 61 and 67 are operating 
under WCPFC conservation and management measures prohibiting the 
intentional encirclement of cetaceans and as such have been classified 
as exempt. NMFS separated into two fisheries the shark and swordfish 
fishery. Spain conducts a directed shark fishery with longlines within 
the ICCAT convention area, but NMFS does not know what additional areas 
shark fishing may be occurring in, or how many vessels are 
participating in this fishery. NMFS moved the lobster trap fishery, the 
anchovy and sardine purse seine fishery, and the bonito troll fishery 
from ``export fisheries with no information'' to export. NMFS 
classified the sea cucumber trawl fishery as export.
    NMFS classified as exempt the bonito handline fishery, sea cucumber 
hand collection/dive fishery, the sea urchin diving fishery, and the 
scallop, mussel, oyster coastal aquaculture fisheries, and the gilthead 
bream, bass, turbot, and bluefin tuna aquaculture because the 
likelihood of marine mammal bycatch is remote. NMFS removed caviar from 
the LOFF and added it to the category ``rule does not apply'' because 
the caviar is sourced from inland aquacultured sturgeon.
    Finally, NMFS reclassified the dolphinfish fishery as ``export 
fishery with no information'' because Spain provided no details on this 
fishery or its marine mammal bycatch.
Suriname
    Based on information provided by Suriname, NMFS updated vessel 
number, area of operation, marine mammal species interactions, and 
comments for select fisheries. Suriname listed additional export 
fisheries: Seabob shrimp trawl; deep water shrimp trawl for orange and 
deep water rose shrimp; bottom trawl for weakfish, grunt, croaker, 
snapper, catfish, hairtail, Barracuda and other demersal fish; bottom 
trawl for weakfish, hairtail or cutlass, drum, croaker or butterfish, 
sea catfish and moonfish (prosecuted by five China flagged vessels); 
gillnet, longline, driftnet and fyke net fishery

[[Page 11723]]

for catfish, Atlantic tripletail, seabob, shrimp and tarpon; setnet and 
pin seine for bang-bang, dagou tifi, kandratiki koepila, pani, snook 
and botrofisie; and a driftnet fishery for croaker, dagou tifi or 
bangamary. Suriname clarified gear type information on an exempt 
fishery, noting that 139 Venezuelan-flagged vessels prosecute snapper, 
grouper, dolphinfish, mackerel etc. using hook and line and handlines, 
while six Venezuelan-flagged vessels utilize longline gear. The 
longline fishery was added to the export fisheries list, and the hook 
and line and handline fishery remained classified as exempt. No marine 
mammal bycatch information was provided for these added fisheries.
Sweden
    Based on Sweden's information submitted by the European Union, NMFS 
updated vessel numbers and gear types. NMFS also removed salmon from 
the list of export fisheries with no information as it was already 
accounted for in the export fisheries list.
    Upon further analysis of U.S. trade data, NMFS removed pollock from 
the LOFF as pollock has not been imported from Sweden in the preceding 
seven years. NMFS also removed sardine from the list of export 
fisheries with no information as most imports were already accounted 
for under the sardine and sprat fisheries. The United States imported 
sardines just twice in the preceding seven years, in 2014 and 2015, and 
in low quantities. Sardines have not been imported since 2015.
Taiwan
    Based on Taiwan's information, NMFS modified the squid driftnet 
fishery to a squid dipnet fishery and reclassified that fishery as 
exempt, as the gear type is too small to catch marine mammals. Also, 
the mullet, marine fish, seabass aquaculture fishery was removed from 
the LOFF as it is an inland pond aquaculture fishery. NMFS updated the 
number of vessels and area of operation for several exempt and export 
fisheries.
    Based on Taiwan's information, NMFS also removed from the LOFF 
(under ``export fisheries with no information'') the fisheries listed 
as operating in FAO area 71 and in Indonesia because Taiwan claims 
these fisheries no longer operate in those areas. From this same 
category, NMFS added as an export fishery the cephalopod and benthic 
species trawl fishery.
    Taiwan Comment 1: Taiwan claimed that the mackerel and bonito 
Taiwan seine fishery, the multi-species mackerel, snappers, crab, 
shark, and mullet gillnet, trammel net, and trawl fisheries, multi-
species mackerel, tuna, mahi-mahi trap fishery and the Japanese and 
oceanic anchovy and eel larvae stow net fishery do not export to the 
United States.
    Response: NMFS retained these fisheries as export fisheries on the 
LOFF as the U.S. trade data indicate either these specific species or 
large quantities of unspecified ``marine fish'' or ``fish.'' Until 
Taiwan can provide information on the species and origin of these 
unspecified fish imports, NMFS will continue to include these fisheries 
on the LOFF.
Thailand
    Thailand's fisheries are permitted and managed as multi-species 
pelagic or demersal fisheries. Based on Thailand's information NMFS 
created gillnet, longline, pot, and trawl fisheries aggregating 
individual species into multi-species pelagic and demersal fishes. By 
separating these fisheries by individual species, NMFS was duplicating 
fisheries; therefore, aggregating these fisheries according to how 
Thailand manages and permits them, while significantly reducing the 
number of export fisheries, provides a realistic estimate of the actual 
number of export fisheries. NMFS added exempt fisheries including: 
Whitespotted conger hand collection; whitespotted conger aquaculture; 
cobia aquaculture, seabass aquaculture, grouper aquaculture, demersal 
fish handline, and pomfret lift net fishery.
Trinidad & Tobago
    Based on information provided by Trinidad & Tobago, NMFS updated 
target species, gear type, vessel number, area of operation, marine 
mammal interactions, marine mammal bycatch estimates, and comments for 
select fisheries. Trinidad & Tobago listed additional fisheries. 
Trinidad & Tobago clarified and expanded the gear types used to 
prosecute tuna as dive/spear, longline, gillnet, and pelagic line. 
Those fisheries were added by gear type to the Trinidad & Tobago export 
list, with the exception of the dive/spear fishery, which was added to 
the exempt list due to that gear type having a remote likelihood of 
marine mammal mortality or serious injury.
    NMFS added the following export fisheries based on information 
submitted by Trinidad & Tobago regarding the draft LOFF a gillnet 
fishery and a pelagic longline fishery for tuna, bonito, flying fish, 
wahoo, and dolphinfish; a banking/troll/tow/other gears fishery for 
croaker, salmon, weakfish, snapper, groundfish, carite, kingfish, 
cavali and shark; an artisanal bait seine/beach seine/Italian seine 
fishery for carite, kingfish, cavali, snapper, herring, weakfish, and 
groundfish; four artisanal multi-gear fisheries--gillnet, driftline/
pelagic line, beach/land seine, and demersal longline--for tuna, 
bonito, flying fish, wahoo, dolphinfish, snapper and grouper.
Tunisia
    Based on information provided by Tunisia, NMFS updated gear type, 
vessel number, and information for select fisheries. NMFS updated 
information for fisheries classified as ``export fisheries with no 
information'' and moved these fisheries to export. NMFS retained all 
fisheries on the exempt list except for lobster caught with gillnets. 
This fishery was moved to the export list because gillnets are known 
have more than remote likelihood of marine mammal bycatch.
    Tunisia provided a list of seafood products known to be exported to 
the United States NMFS noted that several of these products were not on 
the draft LOFF, so those products were added. However, Tunisia provided 
no additional information for those products; therefore, they were 
added under ``export fisheries with no information.''
United Kingdom
    Based on the United Kingdom's (UK) information submitted by the 
European Union, NMFS updated the fishing season for each fishery. NMFS 
reclassified from export to exempt lift net and dredge fisheries 
because of their remote likelihood of marine mammal bycatch.
    Upon further analysis of U.S. trade data, NMFS removed the conch 
fishery as the UK only exported this product to the United States once 
in the preceding seven years. NMFS also removed the fisheries for 
sprat, skate, and hake as these fisheries did not export to the United 
States in the preceding seven years. The UK should consider if removing 
these products is merited. If the UK wishes to export these products it 
must provide information about these fisheries and their marine mammal 
bycatch.
Uruguay
    Uruguay noted that the fishery for black hake is a common name for 
toothfish fished in the CCAMLR Convention Area. As their toothfish 
longline fisheries are already noted, the fishery for black hake is 
redundant. As a result, NMFS has removed this fishery. Uruguay did not 
provide any

[[Page 11724]]

other updates or information on their fisheries.
Vietnam
    In response to information submitted by Vietnam, NMFS combined 
fisheries utilizing the same gear type targeting multiple species, 
including cuttlefish, grouper, mullet, snapper, demersal fisheries, and 
flatfish/sole. NMFS also updated vessel numbers.
    NMFS reclassified to exempt the anchovy and sardine lift net 
fishery because it has a remote likelihood of marine mammal bycatch. 
NMFS moved the mud crab and shrimp aquaculture fishery from the LOFF to 
the ``rule does not apply'' list as these species are cultured at 
inland aquaculture facilities.
    Vietnam Comment 1: Vietnam recommended that NMFS remove the fixed 
gillnet fishery for swimming crabs from the LOFF because this fishery 
operates in coastal areas without marine mammal bycatch. Moreover, this 
fishing gear has small net size (net height of 0.8-1.0 meters) which 
does not affect marine mammals.
    Response: NMFS retained this fishery as export. Gillnet gear, even 
when used in coastal or nearshore areas, likely interacts with marine 
mammals that co-occur in these fishing areas. NMFS needs additional 
information supporting Vietnam's claim that fixed gillnet gear for 
swimming crabs should be classified as exempt.
    Vietnam Comment 2: Vietnam requested NMFS remove from the LOFF the 
fishery for octopus by demersal longline and the deep-sea pelagic 
fishery for orange roughy.
    Response: Vietnam has regularly exported orange roughy and octopus 
to the United States in the preceding seven years. NMFS requests that 
Vietnam provide information on whether these products are harvested or 
the result of intermediary processing.
    Vietnam Comment 3: Vietnam proposed removal of ``logistic vessel'' 
fisheries from the list of ``export fisheries with no information'' 
stating these fisheries are traditional fisheries, operating in coastal 
areas without marine mammal interactions.
    Response: NMFS cannot reclassify these fisheries because Vietnam 
did not identify the species targeted by these logistic vessels nor the 
gear type used in this fishery.
(3) Comments Not Attributed to Specific Nations
    Comment 1: Several nations recommended that NMFS consider third-
party certifications of foreign fisheries as the basis to classify 
fisheries as exempt. Specifically, Greenland recommended NMFS consider 
MSC certifications in support of program efficiencies, towards 
establishing exempt fisheries classifications under the proposed LOFF 
because, amongst other criteria, the MSC certification considers marine 
mammal bycatch.
    Response: NMFS disagrees as nothing in the MMPA authorizes NMFS to 
abrogate its responsibility to determine whether a fishery has bycatch 
in excess of U.S. standards to a third party issuing certifications for 
other commercial or ecological purposes. While NMFS cannot directly 
rely on third-party certifications to show that an export fishery is 
meeting the conditions of a comparability finding or for classification 
of a fishery, it can consider such information as part of the 
documentary evidence that a harvesting nation submits to receive a 
comparability finding. Currently, NMFS does not recognize MSC 
certification in its management of protected species because the 
criteria for obtaining MSC certification do not comport with all 
requirements of the MMPA. Therefore, NMFS cannot base determinations to 
issue comparability findings or classify fisheries solely on MSC 
certification.
    Comment 2: One commenter claimed that in most EU waters, fisheries 
bycatch estimates should be considered minimum estimates of marine 
mammal bycatch and that reliable monitoring is lacking in most 
fisheries. The basis for such assertions include that: Fishermen are 
not required to record marine mammal bycatch in all EU nations; under 
EU council regulation 812/2004, only vessels greater than 15 meters are 
required to use onboard observers; and most cetacean bycatch is 
undocumented in high-bycatch fisheries such as gillnets, trammel nets, 
and other entangling nets used by small vessels.
    The commenter further asserted that the LOFF does not fully assess 
the consequences of ``thousands'' of bycaught marine mammals and 
critically-endangered harbor porpoise (which number only 500 animals) 
in the Eastern Baltic Sea. Bycatch ``in the thousands'' for other 
populations or species sounds dramatic, but even a seemingly very low 
number of annual bycatches of this population occurring in ICES 27.3 
subdivisions 24, 25, 26, 27, 28-2, 29 (and possibly in 28-1, 30 and 32) 
could drive this population to extinction. The commenter noted that 
even the bycatch of one harbor porpoise annually is too much and the 
list should reflect this. The commenter urged NMFS to take into account 
bycatch information on gray seals in the Baltic sea gillnet, fyke net 
and trap fisheries provided by Vanhatalo et al. 2014.
    Response: NMFS recognizes the importance of the scale of bycatch in 
relation to the population size for the marine mammals affected. The 
first step of this process was to identify the scope and scale of 
fisheries exporting fish and fish product to the United States and the 
marine mammal stocks impacted by these fisheries. As outlined in the 
final rule for the MMPA Import Rule, nations will then need to address 
their export fisheries domestically and submit a progress report on 
their mitigation efforts. One way to assess fishery impact of marine 
mammal stocks is by calculating PBR for the stock and determining 
whether mortality and serious injury levels exceed PBR. As noted in the 
comment, the PBR could be a large number of animals, or, as noted for 
small, declining stocks, a single mortality or serious injury may 
exceed PBR. NMFS acknowledges the scale of marine mammal interaction 
may differ based on location of the fishery and the marine mammal 
stocks with which that the fishery interacts.
    Comment 3: One commenter noted the discrepancy between Germany's 
reported bycatch and stranded animals with net marks. The German cod 
and flatfish fisheries in the Baltic (ICES 27.3.c and 27.3.d), report 
only 10 harbor porpoises as bycatch; whereas more than 150 dead harbor 
porpoises strand on German beaches annually, at least 50 percent of 
them with net marks.
    Response: NMFS appreciates this information, but notes it is 
difficult to attribute a stranded harbor porpoise with visible evidence 
of entanglement to a specific fishery. NMFS classified as export all 
gillnet fisheries on the LOFF, meaning export of products from these 
fisheries to the United States require nations to adopt mitigation 
measures or a regulatory program comparable in effectiveness to U.S. 
standards for those fisheries.
    Comment 4: One commenter noted that marine mammal bycatch occurs in 
the German herring set net fishery operating in the Baltic Sea ICES 
division IIId (TV documentary showing harbor porpoise bycatch https://www.youtube.com/watch?v=bMkq9qfQnVg)
    Response: In the LOFF, NMFS indicates for the herring set net 
fishery that ``harbor porpoise interaction likely'' and classified this 
fishery as export.
    Comment 5: One commenter questioned the gear type and bycatch of 61 
harbor porpoise in the German ``fish pods'' fishery operating in the 
Baltic Sea. The commenter suggests that NMFS review this information as 
pot fisheries for cod in the Baltic Sea (fished by Sweden and Denmark) 
are an

[[Page 11725]]

alternative gear preventing bycatch of marine mammals.
    Response: The target species for ``fish pods'' is unknown; 
consequently, NMFS classified this fishery as ``export fishery with no 
information''. NMFS is still seeking information on whether ``fish 
pods'' and fish pots are the same gear type. The estimate of 61 harbor 
porpoise bycaught originates in IWC reports spanning 2009-2011. Upon 
further review of those reports NMFS noted only 4 interactions of 
harbor porpoise with fish pods. NMFS has revised the bycatch estimate 
in the LOFF. The status report also notes 212 harbor porpoise 
strandings in 2010; but, as previously noted in the response to comment 
3, NMFS cannot attribute these strandings to a specific fishery.
    Comment 6: The commenter noted harbor porpoise bycatch occurs in 
the cod, sea trout, and salmon Polish gillnet and entangling net 
fisheries in the Baltic Sea. Many of these bycaught harbor porpoise are 
likely from the critically endangered populations, especially if 
bycatches occur during winter (Skora, K.E., Kuklik, I. (2003)). The 
commenter further noted that bottlenose dolphins are not bycaught in 
these fisheries because they are infrequent visitors to the Baltic Sea.
    Response: NMFS has information indicating that harbor porpoises 
interact with the entangling net fishery operating in the Baltic Sea; 
however, the EU did not provide bycatch estimates. See response to 
Comment 3 for regulatory requirements.
    Comment 7: The commenter noted that in Danish gillnet fisheries 
``harbor porpoise mortality in the thousands'' is recorded for every 
target species, including gadoids, lumpfish, flatfish and herring. Some 
fisheries have high bycatch while others such as the herring gillnet 
catch fewer harbor porpoises. Vinther (1999) lists a number of Danish 
North Sea fisheries with harbor porpoise bycatch. Some conclusions can 
also be drawn for similar Baltic Sea fisheries although this 
information has not been provided in the study. For the Kattegat and 
Belt Sea ICES Working Group on Bycatch of Protected Species (WGBYC) 
2015 and 2016 provide the first estimates of harbor porpoise bycatch. 
However, uncertainty is quite high due to extrapolation of electronic 
monitoring data to incomplete effort data.
    Response: Regarding the high levels of marine mammal mortality 
noted for all Danish gillnet fisheries, NMFS refers the commenter to 
the draft LOFF ``Assumptions Made in the Development of the LOFF,'' 
subsection ``Duplication of Marine Mammal Interactions Based on Gear 
Type with No Associated Target Fishery Species'' (82 FR 3976;, August 
22, 2017). NMFS applied available estimates of marine mammal bycatch to 
similar fisheries operating within an area, especially when bycatch 
estimates were unavailable and bycatch was suspected. NMFS believes 
this approach is in keeping with the MMPA import rule. Without nations 
or other sources providing documentary evidence to illuminate the exact 
gillnet fisheries responsible for high bycatch levels, NMFS based its 
determination on the best available information.
    Comment 8: Several commenters expressed concern about gillnets and 
urged NMFS to prohibit imports from gillnet fisheries. One commenter 
stated that gillnets should be banned worldwide. Turtle Island 
Restoration Network further noted and strongly agreed with the 
classification of drift gillnets and longlines as export fisheries, 
because the likelihood of mortality and serious injury caused by these 
fisheries is more than remote. Several commenters agreed that gillnets 
consistently pose a significant risk to marine mammals.
    Response: NMFS agrees that gillnets pose a significant bycatch risk 
to marine mammals. The final LOFF is replete with gillnet fisheries 
with marine mammal bycatch. This rule requires that, to continue 
exporting products of these fisheries to the United States, nations 
with gillnet export fisheries with incidental mortality and serious 
injury of marine mammals, take significant steps to mitigate that 
mortality or serious injury, such steps could include switching to non-
entangling gear (e.g., hook and line) to ensure achievement of a 
comparability finding.
    Comment 9: The Pacific Coast Federation of Fishermen's Associations 
requested that net pen tuna aquaculture and net and cage finfish 
aquaculture be considered export fisheries because of the use of 
fishmeal in these aquaculture operations. The Pacific Coast Federation 
of Fishermen's Associations cited that because 60 percent of fishmeal 
is exported from its production country and used as feed in a different 
country, fishmeal should be treated as a fish product entering a 
separate nation. The Pacific Coast Federation of Fishermen's 
Associations commented further that if fishmeal is fed to aquaculture 
species and then the species consuming that fishmeal are exported to 
the United States, NMFS should consider this a form of processing. The 
Pacific Coast Federation of Fishermen's Associations stated that 
because the likelihood of incidental mortality and serious injury of 
marine mammals in foreign trawl and seine fisheries used to capture 
species used in fishmeal is more than remote, NMFS should classify all 
aquaculture operations that use or may use fish meal as export 
fisheries.
    Response: NMFS notes that the LOFF is linked to fish that are 
caught or harvested in a specific fishery, not the level of processing 
that occurs downstream of the harvest event. That said, section 
101(a)(2) of the MMPA states that the Secretary of the Treasury shall 
ban the importation of commercial fish or products from fish which have 
been caught with commercial fishing technology which results in the 
incidental kill or incidental serious injury of ocean mammals in excess 
of United States standards. This provision makes clear the MMPA import 
rule regulates the bycatch of marine mammals when the animal is killed 
or injured during a commercial fishing operation. The law does not 
extend to a product that is once or twice removed from that fishery, in 
this case fishmeal consumed by aquaculture fish. Classifying 
aquaculture fisheries based on the fishery classification that is the 
source of fishmeal runs contrary to the MMPA.
    Comment 10: The Natural Resources Defense Council (NRDC), on behalf 
of itself, the Center for Biological Diversity, The Humane Society of 
the United States, the Humane Society Legislative Fund, and Whale and 
Dolphin Conservation stated that New Zealand's Danish seine fisheries 
likely have underreported and unmonitored interactions with marine 
mammals and should not be categorized as exempt without more 
information.
    Response: NMFS notes that New Zealand's Danish seine fishery, as is 
the case with Danish seine fisheries generally, has a remote likelihood 
of marine mammal bycatch and, as indicated above in the list of gear 
types and classifications, Danish seine fisheries are classified as 
exempt except where documentary evidence indicates marine mammal 
interactions are occurring. If NRDC believes marine mammal interactions 
are underreported in these fisheries, it must provide documentary 
evidence for these assertions.
    Comment 11: Unless affirmative information supports an exempt 
classification, NRDC et al. recommended that all of Canada's 
aquaculture fisheries be categorized as export, given the well-
documented instances of intentional killings at numerous aquaculture 
facilities.
    Response: NMFS evaluates aquaculture operations on a case-by-

[[Page 11726]]

case basis, considering the operation's measures to reduce 
interactions, prohibit intentional mortality, and reduce incidental 
mortality and serious injury of marine mammals. NMFS classified 
aquaculture operations as exempt fisheries, unless there was a record 
of entanglement or intentional killing in such aquaculture operations. 
As a result, Canadian aquaculture operations for mussels, clams, 
scallops, oysters, marine plants, quahogs, sea urchin, sea cucumber, 
and kelp are classified as exempt, as are two aquaculture operations 
for trout and salmon, which have no documented marine mammal 
interactions (incidental or intentional). NMFS classified as export all 
other finfish aquaculture with documented marine mammal interaction 
and/or which permit the intentional killing or injury of marine 
mammals.
    Comment 12: NRDC et al. recommended NMFS review the siting of 
aquaculture facilities and consider designating fish from facilities 
overlapping with whale habitat as ``export'' fisheries.
    Response: When classifying aquaculture operations NMFS takes into 
consideration the co-occurrence of marine mammal and aquaculture 
operations.
    Comment 13: NRDC et al. recommended that any fishery with any 
history of gillnet use, including the shrimp fishery, must be 
categorized as export fisheries.
    Response: NMFS agrees and in the absence of documentary evidence to 
the contrary has designated these gillnet fisheries as export.
    Comment 14: NRDC et al., recommended that NMFS designate trap pot 
and other fixed gear fisheries as export when they co-occur with baleen 
and sperm whales, including migration routes. NRDC et al., recommended 
that NMFS classify the Dominican Republic lobster fishery and other 
exporting fisheries in the Caribbean as ``export'' fisheries.
    Response: In developing the LOFF NMFS considers co-occurrence, 
including fisheries operating in marine mammal breeding, feeding, and 
migratory areas, and will continue to evaluate foreign fisheries with 
respect to co-occurrence of marine mammal habitat and, where possible, 
include in that evaluation marine mammal migration routes.
    Comment 15: The International Fund for Animal Welfare, 
International Animal Rescue, OneKind, and Seal Protection Action Group 
are concerned about the intentional killing of seals in and around 
aquaculture facilities and fisheries for Atlantic salmon (Salmo salar) 
in Scotland. While recognizing that the United States is a major export 
market for Scottish farmed salmon, Scotland still permits the killing 
of seals around aquaculture facilities. The organizations noted that 
under Part 6 of the Marine (Scotland) Act 2010 it is an offence to kill 
or injure a seal except under license. In 2017, Marine Scotland issued 
28 licenses to shoot seals at fish farms mainly ``for protection of 
health and welfare [of farmed fish]'' and one issued for ``prevention 
of serious damage.'' These licenses covered a total of 175 individual 
fish farms, permitted killing of up to 245 grey seals and 113 common 
seals (Phoca vitulina), and required quarterly returns showing the 
actual numbers shot. Given that the licenses are issued to 11-16 
companies, encompassing between 214 and 254 farms, over a vast 
geographic area, it is unlikely that major processors will be able to 
demonstrate that they are not handling some fish that have come from 
farms where seals have been shot. This is especially true given 
Atlantic salmon are usually held in marine facilities for between 14 
and 24 months from smolt to adult phase.
    Response: NMFS acknowledges the challenge that salmon aquaculture 
operations face with either prohibiting the intentional mortality or 
serious injury of marine mammals in the course of commercial fishing 
operations in the fishery; or demonstrating that it has procedures to 
reliably certify that exports of fish and fish products to the United 
States are not the product of an intentional killing or serious injury 
of a marine mammal.
    If nations fail to establish an outright prohibition of intentional 
killing or to reliably certify that the product is not associated with 
intentional killing, NMFS will impose import restrictions under the 
MMPA Import Rule. NMFS expects that procedures for producing a reliable 
certification that the product is not associated with intentional 
killing would include certification programs and tracking and 
verification schemes. For NMFS to consider that such a scheme can 
``reliably'' certify their claims, the documentary evidence submitted 
by a harvesting nation must include tracking, verification, and chain 
of custody procedures ensuring, throughout the entire chain of custody 
from the farms, to the packers, to the distributers, and finally to the 
importer--the ability to consistently segregate fish caught without 
intentional mortality and serious injury of marine mammals.
    Comment 16: The World Wildlife Fund (WWF) provided a full report 
with nation-by-nation analysis of marine mammal interactions in 
commercial fisheries.
    Response: NMFS welcomes WWF's submission. In revising the LOFF, 
NMFS reviewed and considered the nation-by-nation analysis and, where 
applicable, included the information and necessary citations in the 
revised LOFF.
(4) Responses to Questions From the Draft LOFF
    In the draft LOFF Federal Register notice (82 FR 39762; August 22, 
2017), NMFS requested public comment and supporting documentation on a 
list of questions. NMFS summarizes the responses to these questions 
below:
    1. Should all marine aquaculture involving lines, such as seaweed, 
mussels, oysters, and other shellfish be considered an exempt fishery? 
Why or why not?
    Comments: NRDC et al., recommended that all marine aquaculture 
involving lines, such as seaweed, mussels, oysters, and other shellfish 
be considered an export fishery. WWF stated there is no reason to 
exempt all such marine aquaculture. Marine mammal bycatch does occur in 
association with such aquaculture facilities, mainly through 
entanglement in lines. Large whales may be at risk and there would be 
particular concerns about this type of aquaculture expanding into whale 
habitat. India commented that line aquaculture for mussels in India is 
practiced mainly in inland estuarine systems/shallow bays, limiting the 
chance of interactions with marine mammals. Similarly, the lines kept 
for seaweed culture are in shallow coastal waters. Such aquaculture 
activities are limited to few villages where the production is quite 
meagre, posing no threat or injury to the marine mammal populations. In 
India's opinion these fisheries should be classified as exempt.
    Response: At this juncture, NMFS does not have sufficient 
documentation indicating that there is more than a remote likelihood of 
bycatch associated with aquaculture line operations. NMFS is retaining 
these fisheries as exempt unless they have a documented bycatch of 
marine mammals.
    2. Should net pen aquaculture for tuna be considered an exempt 
fishery? Why or why not?
    Comment: NRDC et al., recommended that net pen aquaculture for tuna 
should be considered an export fishery based on literature regarding 
lethal predator control and entanglement. WWF stated that well managed 
and properly sited aquaculture facilities should not be

[[Page 11727]]

associated with marine mammal bycatch. However, it would be a mistake 
to make a blanket exemption for all net pen aquaculture because it does 
have the potential for entanglement in lines and other associated gear 
such as anti-predator nets.
    Response: Again, NMFS does not have sufficient documentation 
indicating that there is more than a remote likelihood of bycatch 
associated with tuna aquaculture net pen operations. NMFS is retaining 
these fisheries as exempt unless they have a documented bycatch of 
marine mammals.
    3. Should net cage aquaculture for finfish be considered an exempt 
fishery? Why or why not?
    Comment: NRDC et al., recommended that net cage aquaculture for 
finfish should be considered an export fishery based on literature 
regarding lethal predator control and entanglement. WWF stated that 
well-managed and properly sited aquaculture facilities should not be 
associated with marine mammal bycatch. However, it would be a mistake 
to make a blanket exemption for all net pen aquaculture because it does 
have the potential for entanglement in lines and other associated gear 
such as predator nets. India had no comments to offer as cage 
aquaculture of finfish is not commercially practiced in the marine 
environment in India.
    Response: NMFS does not have sufficient documentation indicating 
that there is more than a remote likelihood of bycatch associated with 
finfish aquaculture net pen operations. NMFS is retaining these 
fisheries as exempt unless they have a documented bycatch of marine 
mammals or engage in the intentional killing or serious injury of 
marine mammals.
    4. Should lift net or other such nets be considered an exempt 
fishery? Why or why not?
    Comment: WWF stated that most lift net fisheries do not appear to 
be associated with marine mammal bycatch but there is nevertheless 
potential for bycatch. Specifying exactly what a lift net fishery 
involved would make a general exemption very difficult. India stated 
that lift nets are passive gears and mostly operated from land in India 
(e.g., Chinese dip net). Such nets are operated in shallow backwater 
areas where mostly low saline environments prevail. The numbers are 
quite minimal and the nets are small in size, operated by traditional 
small scale fishermen, posing no threat or injury to the marine mammal 
populations. Hence they should be considered an exempt fishery.
    Response: NMFS agrees. While it does not have sufficient 
documentation indicating that there is more than a remote likelihood of 
bycatch associated with finfish aquaculture net pen operations, the 
size, scale, and operational characteristics of lift nets do not appear 
capable of capturing marine mammals. NMFS is retaining these fisheries 
as exempt unless they have a documented bycatch of marine mammals.
    5. Would nations prefer to submit their information in the form of 
a database?
    Comment: Few nations commented on those questions, but those that 
did indicated that they prefer to submit their information using a 
streamlined and consistent format.
    Response: NMFS agrees and is open to developing databases that 
facilitate the submission of information needed to maintain the LOFF.
    6. Should nations with only exempt fisheries be allowed to apply 
for a comparability finding every eight years rather than every four 
years?
    Comment: NRDC et al., recommended that nations with only exempt 
fisheries should have to apply for a comparability finding at least 
every four years to ensure compliance with the import provisions of the 
MMPA. WWF noted that fisheries practices can change very quickly in 
response to changes in stocks, quotas or markets. An eight-year option 
may well miss emerging fisheries with a high bycatch risk. Four years 
is a good compromise between being too onerous but still allowing for 
emerging fisheries to be evaluated.
    Response: NMFS notes these comments and will continue to consider 
mechanisms to streamline this process, reduce unnecessary work, while 
still meeting the mandate of the MMPA.

References

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D'agrosa, Caterina,C.E. Lennert-Cody, and O. Vidal. 2000 Vaquita 
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Dawson, S.M., S. Northridge, D. Waples, and A.J. Read. (2013) To 
ping or not to ping: The use of active acoustic devices in 
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Vanhatalo, J., Vetemaa, M., Herrero, A., Aho, T., Tiilikainen, R. 
2014.) By-catch of grey seals (Halichoerus grypus) in Baltic 
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    Dated: March 12, 2018.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2018-05348 Filed 3-15-18; 8:45 am]
 BILLING CODE 3510-22-P